About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2015
>>
[2015] ZAKZPHC 35
|
|
Society of Advocates of Kwazulu - Natal v Levin (4564/13) [2015] ZAKZPHC 35; 2015 (6) SA 50 (KZP); [2015] 4 All SA 213 (KZP) (6 July 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: 4564/13
DATE:
06 JULY 2015
REPORTABLE
THE
SOCIETY OF ADVOCATES OF
KWAZULU-NATAL
...............................................
Applicant
And
EDWARD
LEVIN
..................................................................................................................
Respondent
REVIEW
OF TAXATION
Delivered
6 July 2015
MOODLEY
J
[1]
This is a review in terms of Rule 48 of the Uniform Rules of certain
rulings made at the taxation of an attorney and client
bill of costs
presented by the applicant’s attorneys on 18 February 2013.
[2]
The Society of Advocates of KwaZulu-Natal brought an application
under Case 7050/ 2011 to remove an independent advocate, Edward
Levin, from the roll of advocates, alleging that he was not a fit and
proper person to practice as an advocate as a result of his
conduct
in disregarding the referral rule and performing the functions of an
attorney.
The
respondent opposed the application and raised several constitutional
challenges to the referral rule. The matter was referred
for the
hearing of oral evidence on 21- 25 May 2012. The presiding judges
directed the parties to file comprehensive heads of argument.
[3]
On the first day of the hearing the respondent consented to his
removal from the roll of advocates and to an order, which included
provision for costs, which was subsequently made an order of court
dated 21 May 2012.
The
part of the order relevant to this review directs:
‘
3.
The Respondent is directed to pay the costs of the applicant on the
scale as between attorney and client.
4.
It is declared that the following were necessary witnesses:
4.1
Leon Dunn
4.2
Michael Pedersen
4.3
Sean Chelin
4.4
The Standard Bank of South Africa Ltd.
4.5
The Applicant’s representatives.
4.6
The complaints referred to in the founding affidavit and their legal
representatives.
5.
The costs directed in paragraph 3 above include:
5.1
Those consequent upon the employment of Senior Counsel, including
preparation.
5.2
Senior Counsel and the Applicant’s attorneys costs of:
5.2.1
Preparation
5.2.2
Consultation
5.2.3
Travelling costs and travelling time.
5.2.4
Compilation, copying of and perusal costs of the following bundles:
5.2.4.1
Bundle 1A
5.2.4.2
Bundle 1B
5.2.4.3
Bundle 2
5.2.4.4
Bundle 3
5.2.4.5
Bundles “A” to “G”
5.2.4.6
Dunn Bundle
5.2.4.7
Relationship with Dunn Bundle
5.2.4.8
Summary of Dunn’s evidence.
5.3
The witness costs in respect of the witnesses referred to in
paragraph 4 above, including
witnesses fees, travelling time and
travelling costs, it being recorded that only Leon Dunn was present
at Court.
6.
Each party is directed to pay its own costs in connection with the
application
for a postponement.
7.
The Respondent is directed to pay the costs that reserved on the 02
nd
March 2012 on the attorney and client scale, such costs to include
the costs consequent upon the employment of Senior Counsel.’
[4]
The applicant thereafter presented its bills for taxation which was
attended by representatives
of the applicant and respondent, who
presented oral and written submissions. Both parties were
dissatisfied with certain rulings
by the taxing mistress and availed
themselves 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.
[5]
The applicant was specifically dissatisfied with the rulings on
senior counsel’s fees as approximately R246 500 was
taxed
off her fees of R402 990 (including VAT). In a counter-review,
the respondent requested the taxing mistress to state
a case in
respect of her assessment in respect of fees debited for preparation
for hearing by two attorneys.
[6]
Subsequently, the taxing mistress’s stated case, the
submissions of the applicant and respondent and the taxing mistress’s
final report in compliance with Rule 48 (5) in the review and
counter-review, were placed before me for a determination in terms
of
Rule 48(6). At the request of the parties, oral submissions were made
to me on 24 April 2014.
LEGAL
PRINCIPLES
[7]
Attorneys’ bills of cost in the High Court are taxed in
accordance with the provisions of Rule 70 of the Uniform Rules.
Rule
70(1) provides:
‘
The
taxing master shall be competent to tax any bill of costs for
services actually rendered’ by an attorney in his capacity
as
such in connection with litigious work’ and such bill shall be
taxed subject to the provisions of subrule (5), in accordance
with
the provisions of the appended tariff;...’
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.’
Rule
70(5)(a) stipulates that :
‘
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.’
Rule
70(3) confers a discretion on the taxing master to award such costs
‘as appear to him to have been necessary or proper
for the
attainment of justice or for defending the rights of any party’.
Rule70(5)(a) confers on him a discretion to depart
from the tariff
‘in extraordinary or exceptional’ where costs
awarded in terms of the tariff would not
constitute fair and
reasonable remuneration to the party claiming the fee.
[1]
In
Loots
v Loots
the
court held that ‘This discretion relates perhaps in particular
to attorney and client bills of costs, and is confined
to
extraordinary and exceptional cases’.
[2]
ATTORNEY
AND CLIENT COSTS
[8]
An award of ‘attorney and client costs’ is meant to
ensure that a successful party will recoup expenses he/she has
incurred as a result of the litigation. However this does not mean
that all costs which an attorney is entitled to recover from
his/her
client or the disbursements made by the attorney on behalf of his/her
client and for the professional services rendered
by him/her, may be
recovered by the successful party from the losing party in an
attorney and client bill.
[9]
In
Ben
McDonald Inc v Rudolph
[3]
Van Dijkhorst J stated :
‘
1
Where the losing party in litigation is to pay attorney and client
costs to the
successful party, this means all reasonable costs
incurred on behalf of the client although not strictly necessary or
‘proper’.
2
Attorney and own client costs, where they are to be paid by the
losing party
to the successful
party means all costs incurred except where unreasonable. Agreed
items or
amounts are presumed to be reasonable.’
In
Aircraft
Completion Centre (Pty) Ltd v Roussouw,
[4]
Stegmann J held that as a matter of law, there is no difference
between an order to pay costs as between attorney and client and
costs ‘taxed as between attorney and own client’.
[10]
Therefore the taxing master will tax an attorney and client bill in
accordance with the provisions of Rule 70 as with a party
and party
bill, but will in general allow, in addition to the usual party and
party costs, the costs of unopposed applications
or motions, and
certain attendances and consultations which are ruled to be
reasonable.
[5]
However
in
Nel
v Waterberg Landbouwers Kooperatiewe Vereeniging,
[6]
Tindall
JA held:
‘
An
attorney is not necessarily entitled to a higher fee for what he does
as between attorney and client than the client could recover
in a
party and party bill.’
[7]
and
further:
‘
There
is a considerable difference between the amount of the attorney and
client bill which a successful party is bound to pay to
his own
attorney and the amount of an attorney and client bill which has been
taxed against the losing party. For instance, in
the taxation of the
attorney’s bill against his client, the latter could not object
to a special fee, however high, to counsel
which he had specially
authorised.... But before the amount of an attorney and client bill
can be recovered against the opposite
party it must be taxed
against the latter.... Where the attorney and client costs are
to be paid by the opposite party, the
taxation should be stricter
than in a taxation as between attorney and client where the costs are
to be paid by the client to his
attorney.... We have no Rule of Court
on the subject but it seems to me that here also, when the bill is
taxed against the losing
party, it is essential to apply a stricter
taxation to prevent injustice to the latter as the result of the
award of attorney and
client costs against the losing party really
demands what may be termed an intermediate basis of taxation.’
[8]
Therefore
an attorney and client bill will be taxed more strictly when taxed
against an unsuccessful party than when taxed against
the attorney’s
client, subject to the general rule that each bill will be taxed with
due consideration of the factors relevant
to the assessment of its
reasonableness.
[11]
While the tariff is applied strictly in the taxation of party and
party bills except where the taxing master is specifically
granted a
discretion,
[9]
the tariff is not
binding on an attorney who is entitled to attorney and client costs.
However it is accepted practice that
the tariff is used as a guide
except when there is an agreement that a higher fee may be charged,
as when the client has signed
a fee mandate or an order has been made
authorising the attorney to charge a higher fee.
[10]
COUNSEL’S
FEES
[12]
Advocates’ fees, which are usually reflected as disbursements
in the attorney’s bill of costs, are taxed in accordance
with
Rule 69 of the Uniform Rules. 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.’
There
is no tariff that is applied to services of counsel in litigious
maters in the High Court, except when the amount or value
of the
claim falls below the jurisdiction of the Magistrates’
Court.
[11]
It is apparent from
the words ‘as he considers reasonable’ in Rule 69(5),
that the determination of counsel’s
fee to be allowed on
taxation is pre-eminently within the discretion of the taxing master.
[13]
Consequently the assessment of Counsel’s fees have become
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 issues in 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, but is disputed by the parties to the
taxation.
[14]
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.
[15]
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, and may be disallowed even in an attorney and client
bill as unreasonable.
[16]
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’.
[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
,
[13]
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.’
[14]
[17]
Counsel’s 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’.
[15]
It
was pertinently held, albeit in respect of counsels’ fees for
appeals, in
Hennie
de Beer Game Lodge CC v Waterbok Bosveld Plaas CC & Another:
[16]
‘
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.’
[18]
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.
[19]
A useful 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.
(b)
……………
(c)
An
assessment should have been made as to the reasonableness of
counsel’s fees.’
[17]
[20]
The decisive criterion, however, in respect of both counsel’s
and attorney’s fees, is the value of the work done.
[18]
[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
400 –
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).
[19]
[22]
I have also perused the applicant’s heads of argument, the
written submissions by Senior Counsel, the court files and
bundles of
documents in this matter, as a prerequisite to reviewing the taxing
mistress’s assessment of counsel’s fees,
the complexity
of the matter and the volume of the documents filed. I have remained
mindful of the further oral submissions made
by the parties on 24
April 2014.
MAIN
REVIEW : COUNSEL’S FEES
[23]
The following rulings on counsel’s fees by the taxing mistress
were referred for review:
i)
Items
1, 3, 4, 5, 6, 7, 8, 9, 11, 13, 15, 17 and 19 in the email dated 22
March 2013 from the taxing mistress;
[20]
and
ii)
The
fees charged for consulting with and considering documents supplied
by K. Mulder on 4
th
March 2012, and the consultations held on 11
th
April 2012 and 26 April 2012 with instructing attorney.
[21]
Applicant’s
submissions:
[24]
The applicant’s main objection to the rulings on the aforesaid
items, is that although the attorney and client costs
were ordered by
the court and the order specified the necessary witnesses and
directed that preparation and consultations fees
of Senior Counsel
and the applicant’s attorneys were included in the order, the
taxing mistress misdirected herself by not
allowing the aforesaid
fees of counsel.
[25]
The applicant contended further that the taxing mistress:
i)
applied the wrong principles and taxed the
bill of costs on a party and party basis instead of on an attorney
and client basis;
ii)
disregarded specific written and verbal
submissions made to her. All senior counsel’s fees were fully
substantiated and supported
by fee invoices.
iii)
misdirected herself by holding that a
portion of counsel’s fees which were debited at the rate R2 400
per hour and R24 000
per day in accordance with the costs order,
provided for attorney and client costs.
iv)
failed to appreciate the nature and
complexity of the matter, the volume of the documents and the legal
research required in respect
of the constitutional challenges in the
respondent’s defence to the referral rule in the Advocates’
profession ;
v)
erred in disallowing consultations with
necessary witnesses, one being Leon Dunn, and consultations by
counsel with the instructing
attorney on the basis that the client
was not present at the consultations although paragraph 5.2.2 of the
Court Order allowed
Senior Counsel’s cost for such
consultations. The consultations were necessary and reasonable as the
application was referred
to oral evidence;
vi)
erred in allowing only 2 days for
preparation which involved the scrutiny of voluminous documents; the
preparation was also necessary
and proper for the attainment of
justice and for upholding the profession of Advocates;
vii)
erred in taxing the drafting of Heads of
Argument by counsel and other notices on a per page basis at the fee
allowed for attorneys,
instead of applying the rate on a time spent
basis which would result in a fair and reasonable remuneration for
the work done;
viii)
failed to take into account that the court
had directed that detailed heads be prepared, the length and content
of the heads and
the list of authorities furnished;
ix)
failed to appreciate that the matter was
one of public interest as the decision would have affected the
legal profession as
a whole and the Advocates’ profession in
particular;
x)
failed to take into consideration that the
applicant was ready to proceed with the leading of oral evidence on
21 May 2012, when
the respondent consented to the order which was
subsequently made an order of court on that day.
Taxing
Mistress’s submissions:
[26]
The following factors were duly considered:
i)
the fees recovered by the attorney in the
bill of costs;
ii)
the complexity of the matter;
iii)
the reasonableness of the fee; and
iv)
the usual function of an advocate.
[27]
The bill was taxed on an attorney and client basis according to the
principles stated in
Ben
McDonald Inc v Rudolph.
[22]
Rulings
were therefore based on what costs were reasonable.
[28]
The argument for the complexity of the matter was premised on:
i)
the application was referred for oral evidence;
ii)
Facts in this matter dealt with issues that are specific to the legal
profession which amounted to complex legal issues;
iii)
issues included whether a practising advocate can deal directly with
the public which question is complex in fact and in law,
as is
apparent from the court order, briefing of senior counsel, etc.
[29]
Although the costs order was taken by consent, both parties agreed
that the taxing master always has a discretion to determine
what
constitutes fair and reasonable fees and the provisions of Rule 70(5)
were duly applied.
[23]
[30]
Advocates and attorneys receive the work they do through different
procedures. Therefore the instructing attorney was fully
compensated
for the work he had done.
[31]
Counsel’s fees which were debited at the rate R2 400 per
hour provided for attorney and client costs. An objective
test was
applied in determining the quantum of counsel’s fees: the
actual time spent by counsel,
taking
into account the importance and complexity of the matter, was
balanced against what would be reasonably and objectively allowed
for
a brief of that nature.
[24]
Factors
considered when determining the reasonableness of counsel’s
fees included:
i)
The complexity of the case, inflation, fair compensation of counsel
for preparation and presentation, volume of the case and
prevailing
counsel’s fees.
[25]
ii)
The quantum of counsel’s fee is determined by the value of the
work done and not by the eminence of counsel.
[26]
Drafting
of documents for counsel in this division is allowed on a page basis.
A reasonable fee of R600-00 has been allowed for
counsel to draft the
heads of argument etc. in accordance with Rule 69 of the Uniform
Rules.
[32]
The instructing attorney consulted with the advocate without the
client being present. Therefore
the consultation costs are not
attorney and client costs but rather attorney and
own
client
costs. It is not reasonable for the attorney to consult with the
advocate without the client being present.
[33]
All the facts advanced by both parties were duly considered and fees
reasonable under these circumstances were allowed.
[27]
Respondent’s
submissions
[34]
The parties agreed the terms of the court order dated 21 May 2012.
The
taxation was duly conducted on an attorney and client basis and in
accordance with the recognised principle that attorney and
client
bills of cost must be taxed with due regard to the reasonableness of
the fees.
[35]
The relevant factors to be considered when evaluating counsel’s
fees
in casu
are:
i)
The historical background to the matter:
The existence of other complaints was raised at the pretrial
conference on 11 April 2012,
and by May 2012 it was established that
Dunn would testify. An adjournment was formally requested on 14 May
2012 at the resumed
Rule 37 conference because of the respondent’s
ill health and the introduction of the evidence of Leon Dunn, as the
respondent
intended to consult witnesses and file an amended
Discovery Affidavit. The respondent was advised to make a substantive
application
for adjournment. It was therefore highly unlikely that
the matter would proceed on 21 April 2012 as the respondent would
have been
afforded the opportunity to receive a fair hearing in
accordance with the
audi alteram partem
rule
.
ii)
Complexity: During taxation the applicant
failed to point out sufficiently the complexity either of law or fact
in this matter,
which is nevertheless disputed by the respondent. The
alleged misconduct on the part of the respondent was admitted by the
Respondent.
Therefore the bulk of the allegations were common cause,
and the onus on the applicant was substantially reduced. Further it
is
evident from the papers and the Rule 37 Minutes that the issues
referred to oral evidence were limited.
iii)
Bulk of documentary evidence involved: The
entire fee in respect of the attorney’s perusal of each and
every document of 2697
pages in total – firstly for
identification and secondly for compiling discovery (at a reduced
rate) were allowed. Advocates
do not assist in sifting through
documents for trial preparation.
iv)
Time
actually spent: Counsel consulted for a total of 36.5 hours over a
period of 6 weeks from 02.04.2012 to 21.05.2012. All pleadings
were
drafted by the client (Society of Advocates). Time actually spent by
counsel is no more than a “pointer” in assessing
a
reasonable fee.
[28]
Further
using the actual time spent in evaluating a reasonable fee may in
some instances result in putting a premium on slow and
inefficient
work.
[29]
v)
The
Court Order: The taxing mistress complied with the ambit of the order
in every respect, with due regard to the principle of
reasonableness
and the application of the order. The time spent by counsel must be
reasonable and fees must be determined according
to the work actually
done.
[30]
It is unfair and
unreasonable to burden the party liable for fees pay for work done
“twice” ie by attorney and the
advocate.
[36]
Therefore the taxing mistress exercised her discretion judiciously
and the counsel’s fees as allowed are reasonable,
and no
interference with the taxed bill is warranted.
GENERAL
RULINGS ON REVIEW
[37]
The Taxing Mistress correctly stated that she is obliged in terms of
Rule 70(5) to determine the fees to be allowed in an attorney
and
client bill of costs on the basis of what is reasonable, even when
the parties have consented to an order for attorney and
client costs.
Nevertheless
the agreed rate of counsel’s fees and the items listed in the
order of court dated 21 April 2012, ought to have
been presumed
reasonable at the taxation except if the taxing mistress was
persuaded otherwise for compelling reasons.
[31]
[38]
As the current fee parameters charged by senior counsel in
KwaZulu-Natal are between R2 400
–
R4
500 per hour for consultations and trial and opposed application
fees range between R19 200 to R36 000 per day, the rate
of R2 400
per hour for consultations and R24 000 per day for the hearing
charged by counsel in this matter is undoubtedly
on the lower end and
therefore cannot be considered unreasonable, although the Taxing
Mistress stated that in her view a rate of
R1 800 per hour was
reasonable, and the additional R600 allowed for the attorney and
client portion of the fee.
Therefore
all counsel’s fees charged and allowed on review on a time
spent basis are allowed at a rate of R2 400 per
hour, except for
travelling which is allowed at fifty percent (50%) of her rate.
[39]
Counsel’s fees for drafting heads of argument were charged on a
time spent basis. The only explanation offered by the
taxing mistress
as to why she has allowed a drafting fee per page and not according
to the time spent by counsel is that it is
the practice in this
division to do so. In my view a consistent approach, based on a fee
calculated on the time reasonably spent,
should be maintained.
[32]
Further it was relevant to take into consideration that the presiding
judges requested detailed heads of argument which was a clear
indication of the complexity of the issues and the volume of the
documentation to be considered (although volume does not necessarily
equate with relevance or significance).
I
am of the view that assessment of fees on a time spent basis ought to
become the practice at taxations conducted in this Division,
as is
the general practice in most other divisions, because presently, fees
are generally charged on a time spent basis by advocates
and
attorneys.
[33]
Ms
Annandale has furnished detailed submissions on the nature and
purpose of heads of argument, generally and in the specific context
of this matter, substantiates the argument advanced by the applicant
that the allowed fee is inadequate. In my view the taxing
mistress
erred in her assessment of a fair and reasonable remuneration for the
drafting of the heads of argument because she failed
to accord proper
weight to the relevant factors within the specific context of this
application.
[40]
The respondent contended that the issues were curtailed because of
the admissions of the respondent. Nevertheless the respondent
consented to all the parties listed in paragraph 4 of the costs order
being declared necessary witnesses, thereby acknowledging
the
integral importance of these witnesses to the applicant’s case.
In
Gouws
v Montesse Township & Investment Corporation (Pty) Ltd (2),
Montesse Township & Investment Corporation (Pty) Ltd v
Standard
Bank Ltd (2)
[34]
,
it was held that the question of whether a witness is a ‘necessary
witness’ should be looked at through the eyes of
counsel at the
time when counsel was advising on evidence and at other stages up to
the time when the witness was brought to court.
In my view, the
logical conclusion following on this statement is that, although
advice on evidence and consultations with necessary
witnesses may be
considered attorney and client costs, these charges ought not be
disallowed as unreasonable in an attorney and
client bill, even when
payable by the unsuccessful party.
Further
in her written submissions Ms Annandale has set out in detail why the
consultations in dispute were necessary and how some
arose in the
course of the matter eg pursuant to proposals by the respondent’s
attorney at the Rule 37 conference instructions
had to be taken from
the applicant.
Consequently
it ought to have been accepted by the taxing mistress that
consultations with these witnesses by counsel and attorney
would not
only have been reasonable but necessary, although the duration and
number of the consultations were susceptible to assessment.
The main
criterion to be applied is whether, with due regard to the complexity
and seriousness of the matter, the consultations
were reasonable.
[35]
[41]
Although as a general rule a client is expected to attend the
consultations with attorney and counsel, given the nature of
this
matter and the constitution of the applicant, the client (in the form
of a representative of the Society of Advocates) could
not reasonably
have been expected to attend every consultation between instructing
attorney and counsel, in order to justify an
allowance of a
consultation fee. Consequently I am of the view that the taxing
mistress failed to consider the particular circumstances
of this
matter and has furnished no cogent reason for her ruling other than
that it was not reasonable for the attorney to consult
with the
advocate without the client being present and that such consultation
costs are attorney and own client costs.
[42]
Although the disputes of fact referred to oral evidence may have been
curtailed by the respondent’s admissions, the legal
issues,
including the constitutional challenges raised by the respondent, had
to be comprehensively presented and determined on
the papers. It is
therefore apparent that these constitutional issues necessitated
extensive research and perusal of relevant documentation
and caselaw,
as contended by the applicant. Further, as the issues arose
consequent to the defences relied on by the respondent,
the
complexity of the matter and the legal issues ought not to have been
disputed by the respondent; nor was the taxing mistress
justified in
assessing the matter as ‘semi-complex’.
[43]
I am also in agreement with the applicant’s contention that the
constitutional issues raised by the respondent are of
significance as
they relate to the legal profession as a whole and specifically
affect the advocates’ profession as the constitutionality
of
referral rule was challenged. This contention was not disputed by the
respondent. Ms Annandale also made submissions on the
nature of the
application, the defences of the respondent and the ramifications
thereof, and the
sui generis
nature of strike off proceedings,
intended to assist the taxing mistress in the evaluation of the
significance and complexity of
the matter.
[44]
It was not in dispute that the relevant documentation was voluminous,
as a substantial perusal fee was allowed to the attorney.
The logical
consequence of that perusal by the attorney is however, that he would
have to consult with counsel in order to assist
counsel distil and
determine the authorities relevant to the issues referred to the
court.
Therefore
the allowance of a perusal fee to the attorney does not preclude a
consultation or preparation fee by counsel nor does
it mean that a
fee is debited twice for the same service, as contended by Ms Leppan.
Further, although as a general rule, charges
by an attorney for
consultation with counsel after a brief on application are not
allowed, the rule is subject to the qualification
that the nature of
the matter may require such consultations, rendering the charges
therefor reasonable.
[36]
[45]
I am mindful that the application was drafted prior to Ms Annandale
being briefed in the matter, which would necessarily have
increased
the time expended by her in preparation for the hearing and in
drafting of heads of argument. I am therefore in agreement
with the
taxing mistress that this fact is relevant to the assessment of a
reasonable fee for the aforesaid services, although
Ms Annandale has
pointed out that no fee was rendered for the work done previous to
her brief. Further, while contending that the
preparation fee allowed
for 2 days was unreasonable, Mr Dickson conceded that 7 days could
also be considered excessive for the
preparation.
[46]
The taxing mistress expressed the view that the matter was ‘in
all likelihood going to be postponed’. The respondent
also
submitted that the matter was precluded from proceeding by the
audi
alterem partem
rule, as he intended to investigate the
allegations of Dunn. Ms Annandale has explained why the preparation
had to continue despite
the proposals by the respondent’s at
the Rule 37 conference. In any event, neither party could properly
assume or conclude
that the adjournment would be granted, as only the
court could have determined whether the application for adjournment
sought by
the respondent ought to be granted. In the premises, I am
satisfied that the applicant had to continue preparation for the
hearing
on the basis that it would proceed. The taxing mistress
therefore misdirected herself in accepting the respondent’s
submission
in this respect, which impacted on her assessment of the
preparation fee allowed to counsel.
[47]
In my comments on the general principles relating to the taxation
of counsel’s fees I noted that it
was
important for the taxing master to be properly advised of the factors
pertinent to the assessment of counsel’s fees.
[37]
In this matter, detailed written submissions by counsel were
furnished at the taxation. However it would appear that the taxing
mistress had insufficient regard to these submissions while the
submissions on behalf of the respondent, which were discordant
with
the nature of the application, were favoured. In the result, the
majority of the rulings on counsel’s fees became susceptible
to
review.
[48]
Where applicable, VAT is to be added to the fees allowed on review.
REVIEW
of ITEMS IN DISPUTE
[49]
Item 1 : 2 April 2012 Consultation with instructing
attorney:
Counsel’s
fee of R3 600 for this consultation of 1.5 hours was disallowed
on the basis that it was an oral advice on
evidence and the fees
charged should be reasonable.
On
Review:
i)
Although costs of advice on evidence is
an attorney and client charge, it is not an unreasonable charge in an
attorney and client
bill. Ms Annandale explained that this first
consultation was ‘analogous to oral advice on evidence’
but included a
discussion of the factual and legal issues in dispute
as well as the approach of the applicant to the litigation and
strategy for
the first Rule 37 conference. The fee for this
consultation was allowed to the instructing attorney.
ii)
Fee of R3 600 allowed.
[50]
Item 3 : 11 April 2012 Consultation with the
instructing attorney
Counsel’s
fee of R2 400 for a 1 hour consultation was disallowed on the
basis that the client was not present.
On
Review :
i)
Although I do not agree with the reason for
the fee being disallowed, I am not satisfied that a further
consultation prior to the
Rule 37 conference was reasonable.
ii)
Review denied.
[51]
Item 4 : 11 April 2012 Telephonic consultation with Moerane SC:
Counsel’s
fee of R 1 200 for a 30 minute telephonic consultation was
disallowed on the basis that no cross reference
in the attorney’s
bill to him being party to the consultation could be found.
On
Review:
i)
This was a telephonic consultation. The
taxing mistress’s reason is therefore ill-conceived.
ii)
The respondent had raised issues at the
Rule 37 conference which required instructions from the applicant.
iii)
Duration of consultation and fee
reasonable: Fee of R1 200 allowed.
[52]
Item 5 : 17 April 2012 Consultation with instructing
attorney
The
taxing mistress held that this consultation charged at R4 800
was not reasonably incurred under the circumstances.
On
Review:
i)
Given the paucity of details, I am unable
to find that the taxing mistress exercised her discretion improperly.
ii)
Review denied.
[53]
Item 6 : 19 April 2012 : Consultations and telephonic
consultations with Van Niekerk SC, Moerane SC and instructing
attorney
re Dunn.
This
consultation charged at R3 600 for 1.5 hours was disallowed on
the basis that counsel is not allowed to consult with the
client
without the attorney being present; there is no cross reference in Mr
Essa’s bill.
On
Review:
i)
The circumstances under which the
consultations became necessary and took place urgently on that day is
set out by Ms Annandale
in her submissions.
ii)
The attorney did not attend the
consultation. However the telephonic discussions between counsel and
attorney on that day are reflected
as attendances in items 282 and
284 of the attorney’s bill. Documents were also sent by counsel
to Mr Essa in connection
with Dunn, as reflected in items 286 and
287.
iii)
The parties are not lay litigants and must
be aware of the rules relating to consultations with clients. However
they deemed that
the nature of the matter and the proximity of the
date of hearing warranted the urgent consultations with client
without the presence
of the instructing attorney.
iv)
In
my view the taxing mistress disregarded the aforegoing factors which
were proper for her to consider.
[38]
v)
Fee of R3 600 allowed.
[54]
Item 7: 22 April 2012 Consultation with Leon Dunn:
Counsel’s
fee of R9 600 inclusive of travel was allowed at half of
counsel’s hourly rate for travel and a two hour
consultation
was allowed as being reasonable under the circumstances.
On
Review:
i)
Review of travel fee denied as the rate
allowed is reasonable.
ii)
This was the first consultation with who
was probably the most important witness for the applicant. Three
bundles of documents were
compiled in respect of his evidence and he
was present at court as the first witness to be called by the
applicant.
iii)
While 3 subsequent consultations were held
with this witness, only 2.5 hours in total were allowed on taxation
for these three consultations.
None of these rulings have been
referred for review.
iv)
I
am therefore of the view that the taxing mistress exercised her
discretion incorrectly in permitting only 2 hours for the first
consultation.
[39]
v)
Fee of R 7 200 for consultation of 3
hours allowed.
[55]
Item 8 : 3 May 2012 Heads of Argument
R15 000
of Counsel’s fee of R45 000 was allowed on taxation. The
taxing mistress allowed a drafting fee of R600
per page for the 25
page document (word count of 250 per page applied), in accordance
with the practice in this Division.
On
Review:
i)
Heads
are usually regarded as part of preparation for argument
.
[40]
But
a separate fee is warranted in this matter both as an attorney and
client fee and because counsel was directed by the presiding
judges
to file comprehensive heads of argument, an indication of the
complexity and volume of the matter. Counsel has indicated
that it
took approximately 3 days to finalise the heads.
ii)
In
President
of the Republic of South Africa & Others v Gauteng Lions Rugby
Union & Another
[41]
Kriegler
J drew a distinction between the practice in the Constitutional Court
and the SCA in respect of the heads of argument and
the associated
appearance of counsel at the hearing. He pointed out that ‘in
the SCA the emphasis is on the oral presentation
of argument by
counsel in open court with heads of argument serving largely as a
preliminary guide to the Court, while in the Constitutional
Court,
the emphasis is on written submissions, which are not regarded as
succinct heads of argument forming the basis of the argument
to be
presented, but the argument itself together with all the supporting
material.’
[42]
And
further that ‘In an appropriate case, therefore, it may be
reasonable to make some special allowance for counsel’s
fees
for preparing written argument for this court. This is expressly
contemplated by subrule (2) of the CC Rule 21.’
[43]
iii)
There is no reason why a similar
consideration should not apply to the assessment of counsel’s
fees in this matter.
iv)
I
have perused the relevant heads of argument and having considered the
submissions of Ms Annandale on the general and specific
purpose and
content of heads of argument, I am of the view that the taxing
mistress misdirected herself in assessing the fee at
R600 per page,
as such an assessment even on a per page basis, is disproportionate
to the effort involved in drafting the heads
and fails to take into
account the issues dealt with therein.
[44]
v)
I have already commented on the need for a
uniform practice in accordance with the generally accepted
computation of fees on a time
spent basis, which will provide fair
and reasonable remuneration for the service rendered.
vi)
A fee of R36 000 for 1.5 days at
R2 400 per hour is allowed as a fair and reasonable attorney and
client charge.
[56]
Item 9 : 4 May 2012 Consultation with instructing attorney
The
taxing mistress has stated that this 30 minute consultation at R 1
200 was disallowed as ‘it should have only been dealt
with by
the attorney’.
On
Review:
i)
Ms Annandale has submitted that the
consultation was held to co-ordinate what needed to be done going
forward.
ii)
I am not persuaded that this charge is
reasonable. The review is denied.
[57]
Item 11: 6 May 2012 Consultation with instructing attorney
This
consultation charged at R1 400 was disallowed as it entailed
“traversing further documents”.
On
Review:
i)
Review is denied.
[58]
Item 13 : 10 May 2012 Inspection of files/ procurement of copies/
consultation with instructing attorney at offices of attorney Sean
Chelin
Counsel’s
fee of R13 800 was disallowed on the basis that it is not the
function of counsel, but that of the attorney,
to inspect files; the
attorney was well compensated for his work.
On
Review:
i)
The taxing mistress properly held that the
inspection of the files was the attorney’s function, as was the
procurement of
copies.
ii)
However a consultation was also held at the
same time with Chelin, who was also declared a necessary witness.
iii)
Chelin’s relationship with the
respondent had to be properly canvassed given that the applicant’s
case against the respondent
was premised on his relationship and mode
of practice with certain attorneys, one of whom was the said Chelin.
No further consultations
were held with Chelin.
iv)
Ms Annandale has explained that, because of
the number of relevant files in Chelin’s possession, it was
convenient to consult
with him at his offices instead of uplifting
the files.
v)
The taxing mistress failed to take into
consideration the necessary consultation that was held with Chelin,
and the reason that
it was conducted in his offices.
vi)
In the premises, a fee of R7 200 for a
consultation of 3 hours and R1 200 as a fee for travel is
allowed.
[59]
Item 15 : 14 May 2012 The resumed Rule 37:
Counsel’s
fee of R4 200 was disallowed on the basis that the attorney
should have had this telephonic conversation because
it related to a
postponement.
On
Review:
i)
The resumed Rule 37 conference was
convened. It was not a telephonic conversation, nor was it restricted
to the application for
an adjournment, as indicated in the minutes of
the pre-trial conference.
ii)
In consequence of the taxing mistress’s
error, her ruling in disallowing counsel’s fees is vitiated.
iii)
Counsel’s fee of R4 200 is
allowed.
[60]
Item 17 : 18 May 2012 Various consultations with instructing
attorney
Counsel’s
fees of R13 600 for 3 consultations were disallowed on the basis
that the consultations were unreasonable as
the attorney was allowed
his full fee for preparation.
On
Review:
i)
According to counsel, these consultations
were convened to discuss the sequencing of witnesses, logistical
arrangements etc because
of the proximity of the hearing. I am also
not persuaded that these were reasonable charges.
ii)
Review is denied.
[61]
Item 19: Cumulative fee for preparation
Counsel’s
fee of R168 000 for preparation was charged for seven days at the
rate of R24 000 per day. The taxing mistress
allowed as
reasonable ‘after taking all facts into consideration’
[45]
,
two days at a rate of R16 000 per day.
On
Review:
i)
The
taxing mistress correctly held that the preparation by Ms Annandale
would have taken longer as she did not draft the application
papers.
[46]
ii)
However there is no cogent reason offered
as to why the rate per hour was reduced.
iii)
The
taxing mistress misdirected herself by taking regard of the
respondent’s submission that the matter was going to be
postponed
and failing to consider the submissions by the applicant,
and Ms Annandale in particular, why the preparation had to
continue.
[47]
iv)
A fee for the preparation of heads of
argument has been allowed on review.
v)
In the light of the aforegoing
considerations, a reasonable fee for preparation by counsel is, in my
view, 4 days at the rate of
R24 000 per day.
vi)
A fee of R96 000 is allowed to counsel
for preparation.
[62]
Fees
charged for consulting with and considering documents supplied by K.
Mulder on 4
th
March 2012, and the consultations held on 11
th
April 2012 and 26 April 2012 with instructing attorney.
[48]
Counsel’s
fees of R2 400 and R4 800 debited in her fee note dated 30
April 2012 for consultations with the instructing
attorney on 11
April 2012 and 26 April 2012 respectively, were disallowed in total.
On
Review:
i)
No item which correlates with the
consultation on 4 March 2012 appears in the applicant’s bill or
in counsel’s fee note,
although there is an attendance fee of
R2 400 debited by counsel in her fee note dated 31 May 2012 for an
attendance on K Mulder
and instructing attorney on 4 May 2012 and a
correlative fee debited by the instructing attorney for a
consultation with counsel
and Ms Mulder on the same date. I have
therefore accepted that the consultation took place on 4 May 2012
during which the documents
supplied on 4 March 2012 were
considered.
ii)
As reflected in the bill of costs, on
taxation, consultation fees were allowed to the instructing attorney
for 1 hour on 11 April
2012 (item 239 on bill) and for 2 hours
on 26 April 2012 (item 343 on bill) and for 1 hour on 4 May 2012
(item 456
on bill).
iii)
It is therefore not only reasonable but
logical that counsel’s fees for the same consultations should
have been allowed. The
taxing mistress therefore misdirected herself
by disallowing counsel’s fees as charged.
iv)
Counsel’s fees for the consultations
are allowed at R2 400 for 11 April 2012, R4 800 for 26
April 2012 and R2 400
for 4 May 2012.
THE
COUNTER-REVIEW
[63]
Item 638 : Fees for preparation for hearing
The
applicant’s attorney claimed ‘fees iro preparation for
hearing
for two attorneys
(based on decision in Naval
Servicos: bundles before court totalling 2697 pages) – 67 hours
limited to 1.5
days’.
The
taxing mistress allowed the attorney a fee of R12 780 which was
limited to 1.5 days or 15 hours.
Respondent’s
submissions:
i)
There is no provision in the tariff for an
attorney to function as a junior counsel. The application of Rule 69
and 70 are mutually
exclusive.
ii)
The
attorney’s preparation fee – as contained in the
tariff
– was charged for and awarded in various other charges as set
out by the respondent.
[49]
iii)
The preparation fee as charged for at item
638 of the bill of costs is a therefore misnomer and a duplication:
iv)
Reliance on the
Naval
Servicos c
ase is incorrect as there is
no reference to a preparation fee for an
attorney
.
Taxing
Mistress’s submission
i)
The attorney was allowed a preparation fee
in accordance with paragraph 5.2.1 of the Court Order 21 May 2012.
Applicant’s
submissions
i)
The taxing mistress correctly applied her
mind to the considerations, circumstances and facts of the matter,
the Court Order and
took the correct principles into account. She
therefore exercised her discretion judicially and/or properly.
On
Review:
i)
Reliance on the
Naval
Servicos
case is misplaced.
ii)
Although
the tariff is used as a guide in the taxation of attorney and client
bills, Rule 70(1) provides that a attorney’s
fees ‘shall
be taxed subject to the provisions of subrule (5)’, which
confers upon the taxing master a discretion to
depart from the tariff
in extraordinary and exceptional cases.
[50]
iii)
The usual services performed by an attorney
and as tabulated by the respondent are not contemplated by the
preparation fee that
was ordered.
iv)
The respondent consented to the preparation
fee for the attorney, which was included in the order of court dated
21 April 2012.
v)
The taxing mistress properly deferred to
the order.
vi)
The Counter review is denied.
COSTS
OF REVIEW and COUNTER-REVIEW
[64]
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.’
In
a review of taxation, nominal costs are generally ordered in favour
of the party which is substantially successful. In my view
an adverse
costs order against either party would be inappropriate in this
review.
ORDER
:
1
The charges allowed on review are
substituted for the amounts allowed by the taxing mistress.
2
The
allocatur
of the Taxing Mistress is set aside and referred back to her to be
calculated in accordance with the charges allowed on review.
3
There is no order in respect of costs of
review and counter-review.
MOODLEY
J
Date
of Judgment : 6 July 2015
Applicant’s
Attorneys CAJEE SETSUBI CHETTY INC
195
BOSHOFF STREET
PIETERMARITZBURG
REF:
A ESSA/ND/A558
Respondent’s
Attorneys FRANCI LEPPAN ATTORNEYS
SUIT
5, THE MEWS
REDLANDS
ESTATE
1
GEORGE MACFARLANE LANE
PIETERMARITZBURG
3201
[1]
Jacobs
& Ehlers : Law of Attorneys Costs & Taxation Thereof Juta
1979 p 51-52
[2]
1974(1)SA431(E)at
434C-D
[3]
1997(4)SA
252(T) at 255 D
[4]
2003
(3) ALL SA 617(W)
[5]
President
of the Republic of South Africa & Others v Gauteng Lions Rugby
Union & Another
2002 (2) SA 64
(CC)
at
86 E – the predominant criterion in an attorney & client
bill is the reasonableness of the fee.
[6]
1946
AD 597
p 607
[7]
See
also
Oshry
& Lazar v Taxing Master
1947(1)SA657(T) at 660
[8]
p
607-608
[9]
Rule
70 (6)(a) and (7)
[10]
Jacobs
& Ehlers : p 50-51
[11]
Rule
69(3)
[12]
Preller
v Jordaan
1957 3 SA 201
(O) 203
[13]
1984
(3) SA 15
(A) at page 18F-G
[14]
Johannesburg
Consolidated Investment Co v Johannesburg Town Council
1903 TS 111
[15]
2009
(5) SA 227(C)
para[22] at 234G.See also Erasmus: Superior Court
Practice pB1-420 to B1-422
[16]
2010
(5) SA 124
(CC) para [9]
[17]
Para
[25] at 235G-H
[18]
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.
[19]
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.’
[20]
annexure
B to Notice ito Rule 48(1) Bundle 1 p 9
[21]
not
dealt with in Annexure “B”
[22]
1997
(4) SA 252
(T) at 257G – 258F. Also see
Cambridge
Plan AG v Cambridge Diet (Pty) Ltd & others
1990 (2) SA 574
(T) and
Aircraft
Completions Centre (Pty) Ltd v Rossouw & others
2004
(1) SA 123 (W).
[23]
Coetzee
v Taxing Master, South Gauteng High Court and another
2013
(1) SA 74
(GSJ) headnote at 74 and para 25
[24]
Reef
Lefelbvre (Pty) Ltd v SA Railways and Harbours
1978
(4) SA 961 (W).
[25]
President
v Gauteng Lion’s Rugby Union and another
2004
(2) SA 64 (CC)
[26]
Wellworths
Bazaars Ltd v Chandlers Ltd
1947
(4) SA 453(T)
[27]
Majola
v Union and South West Africa Insurance Co Ltd
1978
(2) SA 154 (SE)
[28]
Naval
Servicos A Vanegcauo Limitada vs Strang Rennies Metal Terminals
(Pty) Ltd.
2008
JDR 1002 at 16.
[29]
JD
van Niekerk EN Genote Ing v Administrateur, Transvaa
l
1994 (1) SA 595 (A)
[30]
President
of the RSA vs Gauteng Lions Rugby Union
2002
(2) SA 64 (CC)
[31]
Ben
McDonald Inc
supra
[32]
Naval
Servicos A Vanegcauo Limitada
p15
[33]
when
written mandates for attorney and own client fees are obtained
by attorneys
[34]
1964
(3) SA 609(T)
at 610; LAWSA Vol 3 Part 2 para 421
[35]
City
Deep Ltd v JHB City Council
1973
(2) SA 109
(W) at 117C.
[36]
Vaatz
v Law Society of Namibia 1994(3)SA536 (Nm)
[37]
General
Rulings para[13]; see also
C
ity
of Cape Town v Arun Property Development (Pty) Ltd and Another
para
[25]
235G-H
[38]
Preller
v Jordaan
supra
at 203
[39]
Jacobs
& Ehlers p 60 : ‘Applying the principles relating to
attorney and clients costs…the following instances
of work
should in appropriate cases be allowed, having regard to the
circumstances of each case:……(f) longer consultations
than would perhaps be allowed as between party and party.’
[40]
Ocean
Commodities supra
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…’.
[41]
2002
(2) SA 64
(CC) para [15] and [16] at 74B- I
[42]
page
84 C-F
[43]
Para[45]
[44]
See
also general rulings
supra
[45]
Naval
Servicos A Vanegcauo Limitade supra
[46]
See
my comments under General Rulings para[44]
[47]
See
my comments under General Rulings para[45]
[48]
not
dealt with in Annexure “B”
[49]
Bundle
2 – Counter-review p 14-15
[50]
Loots
v Loots
1974(1)SA431 (E)at 434C-D