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[2015] ZAKZPHC 33
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KwaZulu-Natal Bookmakers Society v KwaZulu-Natal Gaming And Betting Board and Another (11034/14) [2015] ZAKZPHC 33 (17 June 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No. 11034/14
KWAZULU-NATAL
BOOKMAKERS SOCIETY
Applicant
and
KWAZULU-NATAL
GAMING and BETTING BOARD First
Respondent
THE
PREMIER of the PROVINCE of KWAZULU-NATAL
Second Respondent
REVIEW OF TAXATION
17
June 2015
MOODLEY
J
[1] This is a review of
the taxation of a bill of costs as between party and party presented
by the applicant’s attorneys
on 31 July 2014.
[2] The bill was
presented in respect of an application in which the applicant sought
firstly to have a ‘guideline decision’
taken by the first
respondent in respect of licensed bookmakers in KwaZulu-Natal
reviewed and set aside; and secondly, to have
the dismissal by the
second respondent of the applicant’s appeal against the
decision of the first respondent reviewed and
set aside.
[3] The parties were
directed to file full written argument by the Judge President because
the finalised application papers were
voluminous. The matter was set
down for argument on the opposed roll on 12 December 2013. However on
that day, the matter was settled
by way of a consent order in terms
of which the aforesaid guideline was reviewed and set aside, with
costs including costs of senior
and junior counsel.
[4] The taxation of the
bill drawn by the applicant’s attorneys was attended by legal
representatives the applicants and the
first respondent. The
applicant was dissatisfied with several rulings by the taxing
mistress and availed itself of the recourse
available in terms of
Rule 48(1) of the Uniform Rules and requested the taxing mistress to
state a case in respect of the disputed
rulings. Subsequently, the
taxing mistress’s stated case, the submissions of the applicant
and first respondent and the taxing
mistress’s final report in
compliance with Rule 48(5), were placed before me for a determination
in terms of Rule 48(6).
LEGAL PRINCIPLES
[5] Attorneys’ fees
and disbursements in a party and party bill of costs are taxed in
accordance with the provisions of Rule
70(3) of the Uniform Rules
which 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.’
[6] Advocates’ fees
which are usually reflected as disbursements in the attorney’s
bill of costs, are taxed in accordance
with Rule 69. Rule 69(5)
provides:
‘
The
taxation of advocates’ fees as between party and party shall be
effected by the taxing master in accordance with this
rule and, where
applicable, the tariff. Where the tariff does not apply, he shall
allow such fees (not necessarily in excess thereof)
as he considers
reasonable.’
[7]
The general principle applicable to all awards of party and party
costs was restated by Kriegler J in
President
of the Republic of South Africa & Others v Gauteng Lions Rugby
Union & Another:
[1]
‘
This
Note
[2]
underscores that a moderating balance must be struck which affords
the innocent party adequate indemnification, but within reasonable
bounds. The Taxing Master is also enjoined by SCA Rule 18G(5) Note II
to adopt a flexible and sensible approach to the task of
striking the
balance while taking into account the particular features of the
case. This it does in the following terms:
‘
Note
II
-
The
taxing Master shall be entitled in his or her discretion at any time
to depart from any of the provisions of this tariff in
extraordinary
or exceptional circumstances where the strict execution thereof would
be unjust, and in this regard shall take into
account the time
necessarily taken, the complexity of the matter, the nature of the
subject-matter in dispute, the amount in dispute
and any other
factors he or she considers relevant.’
[16]
The ultimate question raised by the respondents’ application
for review of taxation is therefore whether the Taxing Master
struck
this equitable balance correctly in the light of all the
circumstances of this particular case.
’
[8] Although Kriegler J
was specifically referring to costs in the Constitutional Court and
the Supreme Court of Appeal, the relevance
to party and party bills
of costs presented for taxation in the High Court is apparent, as
Note I to SCA Rule 18G(5) is effectively
the same as Rule 70(3) of
the Uniform Rules.
It is apparent from the
words ‘as appear to him’ and ‘which appear to the
Taxing Master’ in Rule 70(3) and
‘as he considers
reasonable’ in Rule 69(5), that the taxing master is invested
with a discretion in deciding which
costs and disbursements are
reasonable and necessary, and which are either incurred or increased
through over-caution, negligence
or mistake or by payment of an
unusual expense.
Consequently the same
question arises on review in the High Court as in the Constitutional
Court and the SCA: whether the taxing
master has struck an ‘equitable
balance correctly in the light of all the circumstances of this
particular case’.
[9] As
stated by the authors in
Law
of Costs:
[3]
‘
The
discretion vested in a Taxing Master is to allow (all) costs, charges
and expenses as appear to him to have been necessary or
proper, not
those which may objectively attain such qualities. His opinion must
relate to all costs reasonably incurred by the
litigant, which
imports a value judgment as to what is reasonable. Moreover, the
words ‘reasonable’ and ‘in the
opinion of
the
Taxing Master’ that occurred in the tariff appended to rule 70
imported a judgment not referable to objectively ascertainable
qualities in the items of a bill in question. The discretion to
decide what costs have been necessarily or properly incurred is
given
to the Taxing Master and not to the court.’
[10]
The taxing mistress has therefore correctly pointed out that she has
a discretion to award such costs ‘as appears (to
him) to have
been necessary or proper for the attainment of justice or defending
the rights of another party’.
[4]
[11]
Interference on review is justified where a reviewing court finds
that the taxing master:
‘
has
not exercised his discretion properly, as for example, when he has
been actuated by some improper motive, or has not applied
his mind to
the matter, or has disregarded factors or principles which were
proper for him to consider, or considered others which
it was
improper for him to consider, or acted upon wrong principles or
wrongly interpreted rules of law, or gave a ruling which
no
reasonable person would have given’
.
[5]
[12]
It is also trite that a court of review will not interfere with a
ruling made by a taxing master unless it is satisfied that
the taxing
master was clearly wrong. In
Ocean
Commodities Inc & Others v Standard Bank of SA Ltd &
Others
,
[6]
Rabie CJ re-stated the test to be:
‘
.
. . 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]
[13]
It is also necessary to remain mindful that the successful party is
not entitled to a full indemnity but only party and party
costs. The
distinction between party and party costs and attorney and client
costs is set out by Kriegler J in
President
of the Republic of South Africa & others v Gauteng Lions Rugby
Union & Another:
‘
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?’
[8]
[14]
Although the learned judge was referring to counsel’s fees the
principle remains applicable to all fees and charges:
the successful
party is not entitled to a full indemnity in respect of all of its
costs, but only those costs reasonably and necessarily
incurred in
the course of litigation are recoverable as party and party costs.
[9]
[15] Counsel’s fees
remain contentious at taxations because the taxing master is called
upon to exercise a discretion in respect
of matters in which the
scope and complexity of the issues and the work necessarily and
reasonably done in connection therewith,
may not be apparent to a
person who was not involved in the matter or who is unable to grasp
the nature of the matter from a mere
inspection of the file.
The
difficulty that then arises is that the taxing master cannot
correlate the complexity and the time necessarily spent on
preparation
before a pleading is drafted or the matter argued with
the fee debited by counsel, particularly on a time spent basis. The
result
is a ruling in accordance with what appears ‘reasonable’
to the taxing master, having duly considered the submissions
made at
the taxation and the taxing master’s own assessment on what was
necessary.
[16] Therefore in order
to assist the taxing master, counsel should provide a detailed report
of the work done in preparation. The
taxing master should also be
apprised of the experience of counsel and the importance and
complexity of the matter, as factors
relevant to the assessment of
counsel’s fees.
These factors are
significant because the taxing master is also constrained to consider
whether the volume of the matter in which
the bill is taxed has been
unnecessarily increased through over-caution, negligence or mistake.
Further, unnecessary or duplicate
copies of documents, notices and
correspondence frequently burden a file unduly, but are nevertheless
included in the bill of costs
presented for taxation.
[17] Fees in the bill of
costs under review were charged on a time spent basis. I share
the view expressed by Sholto-Douglas
AJ in C
ity of Cape Town v
Arun Property Development (Pty) Ltd and Another
:
‘
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’.
[10]
[18]
It was pertinently held in
Hennie
de Beer Game Lodge CC v Waterbok Bosveld Plaas CC & Another:
[11]
‘
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 in 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.’
[19]
But while the time spent by counsel may not always be a reliable
indication of the value of the services rendered, the recompense
allowed to counsel must be fair, with due regard to all the relevant
factors and the fact that counsel must be fairly compensated
for
preparation and presentation of argument. A reasonable guide, which
would find application in most cases where the reasonableness
or
otherwise of counsel’s fee had to be determined on the
taxation, was formulated in C
ity
of Cape Town v Arun Property Development (Pty) Ltd and Another
:
‘
(a)
Consideration should have been given to the importance of the matter,
its financial value
to the parties and the complexity of the issues
raised and/or required to be canvassed. In this regard the taxing
master should
have had regard to the nature of the matter, the issues
in dispute, the volume of the record and such other factors as may
have
assisted her in obtaining an impression of the matter relevant
to assessing its importance and complexity. The taxing master may
have been assisted by the submissions made by the representatives of
the parties attending the taxation.’
[12]
[20]
The decisive criterion is, however, the value of the work done.
[13]
[21]
To assist me in the review of counsel’s fees, I have had
recourse to a ‘Survey of fees ordinarily charged by Silks
as at
1 July 2004’ and a ‘Survey of Current Junior Counsel Fees
at January 2005’ compiled by the Society of Advocates
of
KwaZulu-Natal. I have been advised that the current fee parameters
charged by senior counsel in KwaZulu-Natal are between R2
4000
–
R4
500 per hour for consultations; trial and opposed application
fees range between R19 200 to R36 000 per day (8 times the
consultation fee).
[14]
[22]
I have also perused the court file in this matter, as a prerequisite
to reviewing the taxing mistresses’s assessment
of the
complexity of the matter and the volume of the case.
REVIEW OF ITEMS IN
DISPUTE
[23] The following
rulings were referred for review:
Counsels’
Fees
Items No
171, 354, 357, 451, 454, 473 and 476 for
counsels’ fees in the sum of R818 411.10 was
reduced by
the taxing mistress by R647 587.30 and allowed in an amount of
R143 823.80.
[24]
Applicant’s
Submissions
(i)
The
applicant was awarded the costs of the employment of senior and
junior counsel. The complexity of the matter required a significant
amount of preparation and perusal and consideration by counsel of the
record filed in terms of Rule 53 by the respondents. The
judge
president directed that the parties file full written argument for
the assistance of the court. The matter was only settled
on the
morning it was to be argued.
(ii)
At
the taxation it was not disputed that the applicant’s senior
and junior counsel spent the time on the matter that they
had charged
for. As the applicant accepted that counsels’ fees debited on
time spent as fair and reasonable, and paid the
fees, in disallowing
the fees as charged the taxing mistress effectively penalised the
successful party to the litigation.
(iii)
The
taxing mistress misdirected herself by failing to accord due weight
to the complexity of the matter, the actual time and labour
expended,
the urgency and importance of the matter to the applicant and those
represented by the applicant and the considerable
volume of the
application papers and the record filed in terms of Rule 53. Her
assessment of a reasonable fee for the work done
by counsel is
therefore inadequate and prejudicial to the applicant.
(iv)
Charging
a fee based on time actually expended is acceptable and in the
interests of transparency.
[15]
The matter was brought on an urgent basis and was brought to
finalization within 3 months. There was therefore no opportunity for
inefficient or slow work.
[25]
In my view, the applicant’s reliance on the fact that it
accepted and paid Counsel’s fees as reasonable must be
qualified by the fact that as a general rule, the fees debited by the
applicant’s attorney would include attorney and client
costs
(and there is no reason to conclude otherwise), while the applicant’s
indemnity is restricted to party and party costs
viz what was
reasonable and necessary for the litigation. Further as ‘volume’
does not automatically equate with ‘relevance’
or
‘necessary’ and ‘time spent’ does not equate
with ‘reasonable’, an objective assessment
is required.
GENERAL RULINGS ON
REVIEW
[26] Having perused the
file in this matter and considered the submissions of the applicant,
the taxing mistress and the first respondent,
I am satisfied that
this was a matter in which the complexity, the importance to the
parties and members of the applicant in particular,
and the
constitutional issues raised justify interference on review in
respect of the rulings on counsels’ fees. Although
the correct
principles were applied at the taxation, this is a matter which, in
my view, required a substantially increased effort
and work by
counsel in order to pursue the application successfully, and
therefore warrants as ‘reasonable and necessary’
more
time than that allowed on taxation.
[27] In the premises, the
following
general rulings
are issued:
(i)
Senior
counsel’s fees have been charged at the rate of R3 000 per
hour. This rate has been accepted by the taxing mistress
in respect
of some of the disputed items. The rate is not disputed by the first
respondent. I am of the view that there is no basis
for interference
with the rate charged, having perused the court file with a view to
assessing what may be considered ‘fair
and reasonable’ in
this case, with due regard to the relevant guidelines and the current
fee parameters set out above.
(ii)
In
terms of Rule 69(2) junior counsel is entitled to 50 % of the fee of
senior counsel. A fee of R1 500 per hour is therefore
to be
applied to junior counsel’s fees.
(iii)
The
consent order dated 12 December 2013 contemplates fees consequent
upon employment of one senior and one junior counsel.
(iv)
Fees
for attendance on the Judge President and presiding judge should be
allowed in full. Neither the attendance nor the time spent
is
susceptible to reduction on the basis that it is not reasonable,
particularly as legal representatives of both parties were
present.
(v)
The
fees are charged on a time spent basis. No explanation is offered by
the taxing mistress as to why she has allowed a drafting
fee per
page. In my view a consistent approach, based on a fee calculated on
the time reasonably spent, should be maintained.
(vi)
VAT
is to be added to all fees allowed on review.
I proceed with the review
of the disputed items individually.
[28]
Item 171: Senior
Counsel’s Fee note dated 30 September 2013
(i)
9
September 2013: Considering and settling draft affidavit and notice
of motion (97 pages): R18 000 charged; R13 200 taxed
off;
R4 800 allowed.
(ii)
19-23 September 2013: Considering correspondence from Venn Nemeth &
Hart and formal application for postponement
and advice (2 hours): R6
000 charged; R6 000 taxed off.
(iii)
26 September 2013: On attending Vahed J and JP’s registrar (1
hour): R3 000 charged; R2 400 taxed off; R600
(30 min)
allowed.
Total
fee: R30 780; R22 572 taxed off; R5 400(+VAT) allowed.
Taxing Mistress’s
submissions
(i)
19-23
September 2013: Part of Counsel’s brief.
First Respondent’s
submissions
(i)
The
founding affidavit was not complex as it was drafted by a ‘gambling
law expert’; 2 hours is reasonable for senior
counsel to settle
the founding affidavit.
(ii)
Considering
correspondence and advice is for the benefit of the applicant and its
attorneys and is therefore an attorney and client
attendance.
(iii)
30
minutes for the consultation is reasonable.
On Review
(i)
9
September 2013 – 2 hours x R3 000 – R6 000 is
allowed, per submission of First Respondent.
(ii)
19-23
September 2013 – Ruling correct. Review is denied.
(iii)
26
September 2013 – 1 hour x R3 000 – R3 000 is
allowed (as charged).
[29]
Item 354: Senior
Counsel’s Fee Note dated 31 October 2013
(i)
1
October 2013: Meeting with Judge President: future conduct of the
matters (2 hours) counsel: R6 000 charged; R3 600
taxed
off; R2 400 (I hour) allowed.
(ii)
22-24
October 2013: Considering records filed and settling supplementary
affidavit; R60 000 charged; R40 000 taxed off;
R20 000
allowed.
Total
fee of R75 240; R43 600 (+VAT) taxed off; R22 400
(+VAT) allowed.
Taxing Mistress’s
submissions
(i)
Fee for considering the records and various preparatory and refresher
and/or day fees ‘ridiculous’
and did not fall under the
ambit of party and party costs. Preparatory and refresher or day fees
are to be taken in account together
in order to assess the
reasonableness of counsels’ fees
.
[16]
R20 000 fee reasonable in the circumstances.
First Respondent’s
submissions
(i)
One
hour allowed for meeting with Judge President is reasonable.
(ii)
The
bulk of the documents making up the filed record were in the
applicant’s possession and /or knowledge when the founding
papers were drafted. Therefore this item is a duplicate perusal by
Counsel.
(iii)
Time
billed for ‘settling supplementary affidavit’ is
excessive as the facts and arguments were not new.
(iv)
The
preparatory and refresher fee was correctly taken into account but
‘the time spent should not displace an objective assessment
of
a proper fee for the work.
[17]
On Review
(i)
1
October 2013 – 2 hours x R3 000 – R6 000 is
allowed
(ii)
22-25
October 2013 – Filed record was necessarily perused;
preparatory and refresher were properly taken into account –
2
days x 8 hours at R3 000 per hour – R48 000 is allowed.
[30]
Item 451: Senior
Counsel’s Fee Note dated 29 November 2013
(i)
8
November 2013: Fee of R6 000 charged for settling a further
affidavit (9 pages). R1 200 (30 minutes) allowed. Considering
further options is an attorney and client fee.
(ii)
18
November 2013: Fee of R3 000 charged for perusing answering affidavit
taxed off; part of counsels’ fee on brief.
(iii)
21
November 2013: Fee of R18 000 (6 hours) charged for settling 42
page affidavit; unreasonable – 1 hour at R2 400 allowed.
(iv)
26
November 2013: Fee of R90 000 charged for settling heads of
argument, short heads, practice note and chronology (3 days).
R85 200
taxed off; R4 800 (2 hours) allowed for 72 pages of heads of
argument.
Total
fee: R136 800; Taxed off R128 400; R8 400 allowed.
Taxing Mistress’s
submissions
(i)
Slow
and inefficient work should not be rewarded.
[18]
‘Reasonable time’ is assessed as the time a competent
professional, acquainted with the matter and surrounding issues,
would take.
(ii)
Heads
of argument are generally an inclusive fee for preparation for
argument and not a separate charge.
[19]
First Respondent’s
submissions
(i)
Fee
charged for 8 November 2013: Attorney and client costs. Further
supplementary affidavit added nothing to the substance of the
applicant’s case.
(ii)
Fee
charged for 18 November 2013: Should be included in counsels’
fee on brief as a preparation attendance.
[20]
Senior counsel’s fee for settling the replying affidavit is an
all-inclusive fee which includes attendances such as perusing
the
answering affidavit and any consultations. But the entire fee should
be struck off as junior counsel had already settled the
affidavit;
settling by senior counsel constitutes a duplicate attendance.
(iii)
Fee
charged for 21 November 2013: It is reasonable for senior counsel to
settle 40 pages per hour.
(iv)
Fee
charged for 26 November 2013: Taxing mistress correctly ruled that
drawing heads of argument in a party and party bill of costs
falls
under the fee for preparation for argument and is generally not
charged as a separate fee.
[21]
On Review
(i)
18
November 2013 – R 3 000 (1 hour) is allowed.
Charge for considering
further options is an attorney and client fee.
(ii)
18/19/21
November 2013 – Perusing answering affidavit; conference;
settling replying affidavit (42 pages) – 4 hours
x R3 000
– R12 000 is allowed.
(iii)
26
November 2013 – Full written argument was prepared on direction
of the Judge President. Therefore although heads are usually
regarded
as part of preparation for argument, under these circumstances, a
separate fee is warranted for settling heads drafted
by Junior
counsel.
[22]
10 hours x R3 000
– R 30 000 is allowed.
[31]
Item 357 and Item
454: Junior counsel’s fees
(i)
Item
357:
Fee
Note dated 29 October 2013: R86 184 charged; R78 660 taxed
off.
(ii)
Item
454:
Fee
Note dated 29 November 2013: R121 752 charged; R92 682
taxed off.
Taxing Mistress’s
submissions
(i)
Rule
69(2) provides ‘the fees to be permitted in respect of any
additional advocate shall not exceed one half of those allowed
in
respect of the first advocate.’ Therefore junior counsel is
only entitled to half of senior counsel’s fees.
[23]
First Respondent’s
submissions
Item
357
:
(i)
Any
research undertaken by the counsel for the applicant is an attorney
and client cost.
(ii)
Fee
charged for 6/7/8 October 2013: The taxing mistress’ decision
to tax the amounts off is correct; only the costs of two
counsel
allowed in this matter. One hour allowed by the taxing mistress too
lenient; further perusal of the Rule 53 record was
not necessary.
(iii)
Fees
charged for 11/16/19-21 October 2013: Mainly attorney and client
costs.
(iv)
Fees
charged for 22-25 October 2013 (the taxing mistress allowed 3 hours
in total): The submissions were the same as for senior
counsel.
(v)
Fee
charged for 28/29 October: R600 correctly allowed for drafting of
Rule 30A notice (2 pages).
On Review
(i)
Costs
of one junior counsel are allowed.
(ii)
Fees,
which include fee for drafting, have been charged on a time- spent
basis. No reason is given for the drafting fee being allowed
at R300
per page.
(iii)
1
October 2013 – 2 hours x R1 500 – R3 000 is allowed.
(iv)
6/7/8/11/16
October 2013 – perusal of record and related documents included
in fee for 22-25 October 2013. Review is denied.
(v)
22-25
October 2013 (inclusive per (iv) – 2 days x 8 hours at R1500
per hour – R24 000 is allowed.
(vi)
Rule
30A notice – R1 500 is allowed.
[32]
Item 454: Junior
Counsel’s Fee Note dated 29 November 2013
First Respondent’s
submissions
(i)
November
2013: 9 x R300 per page for drafting reasonable. Perusal of further
opinions should be included in Counsel’s fee
on brief.
(ii)
18/19
November 2013: Attendances fall within all-inclusive fee for drafting
Replying affidavit.
(iii)
20
November 2013: Duplication as replying affidavit settled by Counsel
in Item 451; 1 hour therefore lenient.
(iv)
21
November 2013: Amendment of same documents; not a party and party
charge.
(v)
22-27
November 2013: R300 per page allowed lenient as drafting of heads of
argument not allowed as a separate fee in a party and
part bill;
should be included in Counsel’s fee on brief for argument.
On Review
(i)
7
November 2013 – further supporting affidavit – R3 000
is allowed.
(ii)
18/19/20/21
November 2013 – consultations, settling and amending replying
affidavit – 10 hours x R1 500 –
R15 000 is
allowed.
(iii)
22-27
November 2013 – full argument prepared at the Judge President’s
request; 3 days reasonable; 3 days x 8 hours x
R1 500 –
R36 000 is allowed.
[33]
Item 473
Fee charged for
preparation for opposed hearing (3 days) R90 000, and on hearing
R30 000; Total R120 000 Taxed off R42 000.
Allowed
R54 000 (+VAT).
Taxing Mistress’s
submissions
(i)
One
day for preparation was allowed and fee for the hearing was reduced
to R24 000 was allowed as being reasonable under the
circumstances.
[24]
First Respondent’s
submissions
(i)
This
fee is included in either item 451 or 171 as a preparation fee or fee
on brief and this is therefore either a duplication or
an attorney
and client attendance.
(ii)
The
allowance for 1 day is reasonable.
(iii)
Senior
counsel’s day fee is excessive in a party and party bill.
On Review
(i)
Fee
allowed for settling heads. Preparation of 2 days for opposed hearing
therefore reasonable – 8 hours x 2 days x
R3 000 –
R48 000 is allowed.
[25]
(ii)
Fee
on opposed hearing – allowed at 8 times the hourly rate –
R24 000 allowed on taxation is therefore reasonable.
Review is
denied.
[34]
Item 476: Junior
Counsels’ Fee Note dated 13 December 2013
Fee charged R96 000.
Taxed off R72 000. Allowed R24 000(+VAT).
Taxing Mistress’s
submissions
(i)
One
day allowed for preparation and 1 day on appearance.
(ii)
A
party will be indemnified only for those fees that are reasonable and
necessary for the proper attainment of justice.
[26]
First Respondent’s
submissions
(i)
Preparation
for hearing was included in item 454. Submission in respect of the
heads of argument reiterated.
(ii)
The
1 day fee permitted for junior counsel was fair and the same as
permitted for senior counsel.
On Review
(i)
Fee
has been allowed on review for settling heads. Preparation of 2 days
for opposed hearing is therefore reasonable – 8 hours
x 2 days
x R1 500 – R24 000 is allowed.
(ii)
Fee
on opposed hearing – is allowed at 8 times the hourly rate
[27]
– R12 000 is allowed.
ATTORNEY’S
FEES
[35]
The general rule is that the tariff must be strictly applied.
[28]
However Rule 70(5)(a) provides:
‘
The
taxing master shall be entitled, in his discretion, at any time to
depart from any of the provisions of this tariff in extraordinary
or
exceptional cases, where strict adherence to such provisions would be
inequitable.’
[36]
The taxing master has, as in the determination of ‘reasonable
and necessary’ counsel’s fees on taxation,
a discretion
to depart from the tariff if he/she regards a case ‘extraordinary
or exceptional’ and the tariff fee would
not be fair recompense
for the relevant service rendered. Interference on review must be
limited to decisions in respect of which
the taxing master has not
exercised his/her discretion properly.
PERUSAL OF THE
DOCUMENTS PERTAINING TO THE APPEAL TO THE PREMIER: ITEMS 6 AND 7
[37]
Applicant’s
submissions
(i)
The
taxing mistress failed to appreciate that the application was
necessitated by the second respondent’s failure to address
the
applicant’s complaint.
(ii)
The
documents annexed to the application papers were integral to the
applicant’s case.
(iii)
This
is not a re-perusal as the ruling was only delivered in August 2013.
(The first appeal to the premier was lodged in August
2012 and the
second appeal in April 2013)
(iv)
In
the
Tulbagh
Municipality
matter a lesser fee ie one third, was allowed for documents
previously perused where there was a relatively long lapse in time.
(v)
But
the length of the time between perusals is not the only factor. The
length, nature and complexity of the document being re-perused
are
also significant.
(vi)
A
perusal fee to the attorney ought to be allowed as he cannot be
expected to recall all the contents of the document previously
perused.
Taxing
Mistress’s submissions
(i)
The
appeal was finalised on 15 April 2013 and the review was brought on
10 September 2013, five months later. As the same documents
were
perused at both stages, the contents of the documents must have been
fresh in the attorney’s mind.
(ii)
A
perusal fee was already claimed in the appeal hearing. A full perusal
fee should be allowed after the lapse of a relatively long
time.
[29]
First Respondent’s
Submissions
(i)
A
very short period had lapsed between the documents being perused.
(ii)
Therefore,
as held in
Greenblatt
and Another v Wireohms South Africa (Pty) Ltd:
[30]
‘
It
is obvious that the task of perusing the record of a case in which a
person has been previously engaged must necessarily be far
lighter
than it would be to peruse the record of a case with which one had
had nothing to do previously.’
(iii)
The
perusals are wholly attorney and client charges.
On Review
(i)
Although
the attorney read the documents previously for the purposes of the
appeal, a further perusal would have been necessary
for the purpose
of the review, as he could not reasonably be expected to recall all
the contents. However, the further perusal
would have been easier
because of his familiarity with the documents.
(ii)
30
% of the tariff fee is allowed.
ITEMS
PERTAINING TO THE APPEAL TO THE PREMIER
:
ITEMS
13, 14, 15 AND 16
[38]
Applicant’s
Submissions
(i)
The
applicant’s attorney had a duty to peruse the ruling in respect
of the appeal and thereafter to consult with the applicant
in order
to take instructions. Had the appeal to the second respondent been
successful, the review to this court would not have
been necessary.
Taxing Mistress’s
Submissions
(i)
Attorney
and client costs.
(ii)
Also
costs of appeal.
First Respondent’s
submissions
(i)
Dr
Mkhize’s Ruling included in Rule 53 record.
(ii)
Costs
incurred prior to institution of review proceedings.
(iii)
Also
formed part of appeal proceedings.
On Review
(i)
Fee
for perusal of Ruling is allowed later in bill. Review is denied.
DUPLICATE
PERUSALS
:
ITEMS
47, 56, 57, 58, 62, 63, 71, 74, 81, 224, 240, 244, 248, 288, 289,
290, 292, 298, 308, 317, 318, 319, 320 AND 321 (disallowed
in
totality or in part)
[39]
Applicant’s
submissions
(i)
There
was a duty on the applicant’s attorneys to peruse and consider
the record delivered by the respondent in its entirety.
The
duplicated documents could only be established when the applicant’s
attorney read the documents.
(ii)
As
the record of proceedings upon which an administrative decision was
made, it was essential for the attorney to have a proper
knowledge of
the documents in the record, in order to proceed with the review and
place all the relevant documentation before the
court.
(iii)
By
allowing only a portion of the fee for perusing and considering the
record the successful litigant is not indemnified in accordance
with
Rule 70(3).
(iv)
Given
the volume of documents, it was not easy for the applicant’s
attorneys to recall and consider the documents without
an adequate
perusal.
Taxing Mistress’s
submissions
(i)
An
identification fee was allowed for documents which appeared in both
the records and as annexures to any of the affidavits; duplication
of
perusal of the same documents was disallowed.
(ii)
Extraction
of documents from a record that are material to the case are attorney
and client costs (perusal of all duplicated documents).
First Respondent’s
submissions
(i)
All
documents mentioned in the items had been received and perused by the
applicant’s attorneys before the founding affidavit
was
drafted; ruling therefore correct.
[31]
On Review
(i)
Ruling
of taxing mistress is correct. Review is denied.
TIME SPENT SORTING
AND ARRANGING AND CONSULTATIONS WITH CLIENT: Items 94, 112, 284, 259,
346 and 396
[40]
Items 94, 284,
346 and 396
Applicant’s
Submissions
(i)
Tariff
allows for sorting and arranging pleadings; annexures are an integral
part of pleadings and have to be correctly labelled
and annexed to
the relevant affidavit.
(ii)
The
fees were therefore reasonably and necessarily incurred by the
attorney ensuring that the papers were properly before court.
Taxing Mistress’s
submissions
(i)
Rule
70(2)(C) makes provision for sorting and paginating papers to
pleadings but not for sorting and arranging annexures to an
affidavit. Therefore not allowable on a party and party scale.
First Respondent’s
submissions
(i)
“
The
fact that documents are annexed to an affidavit does not make them
part of the affidavit nor one document with the affidavit.”
[32]
These are therefore attorney and client costs.
(ii)
Also
a duplication of an attendance as identification fees for items 47,
56, 62, 63, 71, 74 and 81 were allowed which is essentially
sorting
and arranging.
On Review
(i)
The
reliance on
Vaatz
is misplaced – the ruling in
Vaatz
was in respect of perusal fees.
(ii)
Affidavits
are the equivalent of pleadings in motion proceedings and annexures
thereto are an integral part of the affidavit.
(iii)
Sorting
and arranging follow on identification, and cannot be considered the
same.
(iv)
Annexures
consist of Annexure “RS1” to Annexure “RSfurthersupp4”
(approximately 900 pages). But perusal
fee allowed for annexures and
copies of annexures made:
(a)
RS1-52
– see items 36-90.
(b)
RSsupp
1-36 – see items 28-322.
(c)
Annexures
RSfurthersupp1-4 – perused and traversed with
client – see
items 345 and 347-350.
(d) Annexures
RSReply1-2 – see items 399-400.
(v)
Consequently,
additional charge for arranging and sorting annexures is unreasonable
and not necessary. Review is denied.
[41]
Item 112
Applicant’s
submissions
(i)
In
compliance with the Practice Directive, papers are required to be
properly indexed with each annexure itemised and described.
(ii)
The
fee of R85 allowed for drafting index to each volume does not allow
for the actual time spent in itemising each annexure to
the
affidavit.
(iii)
This
work was necessary and proper and does not amount to being
over-cautious, negligent or a mistake.
Taxing Mistress’s
submissions
(i)
Attorney
and client charges.
First Respondent’s
submissions
(i)
This
is an attorney and client cost.
(ii)
The
fee for drafting an index includes sorting documents.
On Review
(i)
Ruling
is correct. Drafting index charge is the proper party and party cost
and has been allowed. Review is denied.
[42]
Item 256
Applicant’s
submissions
(i)
The
fee was reasonable and necessary given the nature of the review
application.
(ii)
It
was reasonable and necessary to consult with client upon receipt of
the record in order to ensure the record’s accuracy
and
completeness.
(iii)
Fee
ought to be allowed under item 70(2)(A)(9) of the tariff: ‘any
necessary consultations and discussions with a client not
otherwise
provided for’.
Taxing Mistress’s
submissions
(i)
Attorney
and client charge.
[33]
First Respondent’s
submissions
(i)
Checking
the correctness of the record does not fall under the provisions of
the tariff and is therefore an attorney and client
cost.
On
Review
(i)
The
Ruling is correct. Review is denied.
TIME SPENT SORTING
AND ARRANGING COUNSEL’S BRIEF: ITEMS 33, 124, 188, 191, 385,
388, 419, 422
[43]
Items 124, 188
and 191
: Conceded.
[44]
Item 33
Applicant’s
submissions
(i)
Collation
and assembling of the relevant documents for inclusion in counsels’
brief is necessary and proper and provided for
in the tariff : Item
70(C)(2).
(ii)
There
was a significant amount of documentation that needed to be
photocopied and arranged into coherent bundle for counsel to prepare
the application papers.
Taxing Mistress’s
submissions
(i)
Counsel
should prepare papers.
First Respondent’s
submissions
(i)
Although
it is reasonable and necessary that counsel is properly briefed the
sorting and arrangement of papers could have been done
by counsel.
On Review
(i)
Sorting
and arranging papers for counsel is provided for in Tariff. Charge of
R426 is allowed.
[45]
Items 385, 388,
419, 422
Applicant’s
submissions
(i)
The
taxing mistress failed to take into consideration the volume of
documentation involved and that every time further papers were
filed,
the briefs for both counsel had to be supplemented and updated and
then the entire application had to be re-indexed and
paginated.
(ii)
It
was a reasonable and necessary cost and not increased through
overcaution.
Taxing Mistress’s
submissions
(i)
Every
time a document is filed the attorney charges a fee for sorting and
arranging counsels’ papers.
(ii)
Items
419 and 422 were for the drafting the heads of argument. If the
attorney was over-cautious, does not become a party and party
charge.
First Respondent’s
submissions
(i)
Items
419 and 422 – effectively a preparation fee which is included
in the fee for drafting heads of argument.
(ii)
Not
a party and party charge.
On Review
(i)
Ruling
is correct. Review is denied.
DRAWING
INSTRUCTIONS TO COUNSEL: ITEMS 383, 386, 417 AND 420
[46]
Applicant’s
submissions
(i)
It
was necessary and reasonable to send instructions with the brief to
counsel.
(ii)
Item
B(2)(b) of the tariff provides for instructions to counsel and does
not limit when and how many times instructions are sent.
(iii)
The
items taxed off in respect of drawing instructions to counsel on
drafting the replying affidavit and heads of argument was separate
from the items allowed previously in respect of instructing counsel
(items 31, 122, 186 and 189). The taxing mistress misdirected
herself
by disallowing these items on the basis that instructions to counsel
had been allowed elsewhere.
Taxing Mistress’s
submissions
(i)
These
items were unreasonable; instructions to counsel were already allowed
in items 31, 122, 186 and 189.
First Respondent’s
submissions
(i)
No
proof of instructions to counsel were furnished at the taxation.
On Review
(i)
Review
is denied for reasons furnished by the taxing mistress and first
respondent.
COSTS OF REVIEW
[47]
Rule 48 (7)
provides:
‘
The
judge or court deciding the matter may make such order as to costs of
the case as he or she or it may deem fit, including an
order that the
unsuccessful party pay to the successful party the costs of review in
a sum fixed by the judge or court.’
Usually in a review of
taxation, nominal costs are ordered in favour of the party which is
substantially successful. In my view
this is a matter in which an
adverse costs order against either party would be inappropriate.
ORDER
:
1
The
charges allowed on review are substituted for the amounts allowed by
the taxing mistress.
2
The
allocator is set aside and is to be calculated in accordance with the
reviewed amounts.
3
There
is no order in respect of costs.
_______________________
MOODLEY J
Applicant’s
Attorneys:
JH NICOLSON STILLER & GESHEN
2
nd
Floor Clifton Place
19
Hurst Grove
Musgrave
DURBAN
Locally
represented by:
STOWELL
& CO
295
Pietermaritz Street
PIETERMARITZBURG
Respondent’s
Attorneys:
Venns Attorneys
281
Pietermaritz Street
PIETERMARITZBURG
[1]
2002 (2) SA 64
(CC)
para
[15] and [16] at 74B- I
[2]
Note 1 to SCA Rule
18G (5)
[3]
AC Cilliers : Law
of Costs 3
rd
edition 1997 para 13.03 (issue 28)
[4]
Visser v Gubb
1981
(3) SA 753
(C) at 754H-755C
[5]
Preller v
Jordaan
1957 3 SA 201
(O) 203
[6]
1984 (3) SA 15
(A)
at page 18F-G
[7]
Johannesburg
Consolidated Investment Co v Johannesburg Town Council
1903 TS 111
[8]
Para [47] 85C-E
[9]
Camps Bay
Ratepayers' and Residents' Association v Harrison 2012 JDR 1723 (CC)
at page 3:
‘
[4] The
principles applying to a taxation of a bill of costs in this Court
were established in
President
of the Republic of South Africa and Others v Gauteng Lions Rugby
Union and Another
,
7
and were restated in slightly expanded form in
Hennie
de Beer Game Lodge CC v Waterbok Bosveld Plaas CC and Another
(
Hennie
de Beer
).
Their nub is that a successful party gets costs as an
indemnification for its expense in having been forced to litigate,
and that a moderating balance must be struck to afford the innocent
party adequate indemnification within reasonable bounds. All
circumstances must be taken into account, and an overall balance
struck. The Court will not interfere with the Taxing Master's
award
simply because its views are different. It will interfere only when
the Taxing Master's view is so materially different
as to vitiate
the ruling.’
[10]
2009 (5) SA 227
(C) para [22] at 234G
[11]
2010 (5) SA 124
(CC) para [9]
[12]
Para [25] at
235G-H
[13]
AC Cilliers Law of
Costs 3
rd
ed par 13.19 -
Sublime
Technologies (Pty)Ltd v Jonker
2010(2) SA 522 (SCA) at 177-181 -
Ocean
Commodities
at
22H-I
[14]
C
ity
of Cape Town v Arun Property Development (Pty) Ltd and Another
at para [25] 235I:
‘
(b)
The work actually done by counsel and the rate at which he charged
should have been considered. A comparison between the rate
charged
and the Cape Bar Council’s fee parameters ought to provide a
sound basis for determining the reasonableness of
the rate charged
by counsel, and, as long as regard is had to the fee parameters for
the appropriate period, the question of
inflation ought not to play
any significant role, if it arises at all.’
[15]
City of Cape
Town v Arun
Property
Development (Pty) Ltd and Another
2009 (5) SA 227
(C) para 22
[16]
City of Cape
Town v Arun
Property
Development (Pty) Ltd and Another
and
Hennie
De Beer Game Lodge CC v Waterbok Bosveld Plaas CC and Another
regarding slow and inefficient work and what is reasonable to
charge
[17]
Scott v Poupard
& Another
1972(1) SA 686 (A) at 690
[18]
Hennie De Beer
Game
Lodge CC at
para[9]
at 127C-E
[19]
JD van Niekerk
en Genote v Administrateur, Transvaal
1994
(1) SA 595 (A)
[20]
Toxopeus v
Kwanda Tile & Concrete Works (Edms) Bpk and Others
1988 (3) SA 440
(T) at 441I ‘. . . the preparation done
by counsel should be included in his fee on appeal. There is no
warrant for
a separate fee, call it what you will.’
[21]
De Jager v
Secretary for Inland Revenue
1975 (4) SA 968
(T) at 963 states that ‘Ordinarily no fees are
allowable as between party and party in respect of counsel’s
heads
of argument which are regarded as an aid to argument, and the
preparation of which is regarded as being part of the preparation
of
argument’;
Ocean
Commodities
at
19C ‘Heads of argument are drawn when counsel has done his
research and prepared for the appeal. They reflect the result
of
that research and preparation…’.
[22]
cf
Ocean
Commodities
page
20D-E : ‘Heads of argument, admittedly documents of great
importance, have always been required by the Rules of this
Court,
but this fact has never been considered to be a sufficient reason
for allowing a separate fee for the drawing thereof…’.
[23]
Rule 69(2); Van
Loggerenberg et al : Erasmus:
Superior
Court Practice
(2013
– service number 41) B1-419 -
Toxopeus
v Kwanda Tile & Concrete Works (Edms) Bpk
1988
(3) SA 440 (T)
[24]
Reef Lebevre
(Pty) Ltd v SA Railways & Harbours
1978 (4) SA 961
(W) -
Camps
Bay Ratepayers’ & Residents’ Association v Harrison
2012
JDR 1723 para10
[25]
Cape Town v
Arun Property Development (Pty) Ltd and Another
para [27-[29] at
236B-E and 236J
[26]
Rule 70(3) of the
Uniform Rules -
Visser
v Gubb
1981 (3) SA 753
(C) at 754H-755B. See also para 1 of this Stated
case
[27]
See para [21]
[28]
Law of Costs
para 13.05 at 13-11 - see also
Thornycraft
Cartage Co v Beier & Co (Pty) Ltd
1962 (3) SA 26
(N)
[29]
Tulbagh
Municipality v Waveren Boukontrakteur (Edms) Bpk
1968 (3) SA 246
(C) per van Wyk J
[30]
1960 SA 2
(C) 527
at 528
[31]
Wapenaar v Todt
and Another
1962
(1) SA 239
(W) at 243
[32]
Vaatz v Law
Society of Namibia
1994
(3) SA 536
(NM) at 542I/J-J
[33]
See description of
“party and party” costs in Ehlers:
Law
of Attorneys Costs and Taxation thereof
para
31 on page 41