Jordaan v Road Accident Fund (475911/2011) [2026] ZAGPPHC 13 (30 January 2026)

80 Reportability

Civil Procedure

Brief Summary

Review — Taxation of costs — Application for review of Taxing Master's decision disallowing attorney and counsel fees for trial days — Taxing Master ruling based on absence of specific court order detailing duration of trial — Court finding that attendance for all trial days was necessary and that Taxing Master erred in interpretation of court order — Review granted, allowing full costs for claimed items.

Comprehensive Summary

Summary of Judgment

1. Introduction

The proceedings were an application for review of taxation brought under Rule 48 of the Uniform Rules of Court. The applicant, Jordaan, Albertus Johannes N.O., sought judicial intervention in respect of certain rulings made by the Taxing Master when taxing a bill of costs. The respondent was the Road Accident Fund, which did not oppose the review.

The procedural history relevant to the review was that the applicant delivered a notice of review after the allocatur, whereafter the Taxing Master delivered a stated case in terms of Rule 48(3). The applicant then filed submissions under Rule 48(5)(a). Because the review turned on a single crisp issue, the court determined under Rule 48(6)(a)(i) that the matter was appropriately decided in chambers on the papers.

The subject-matter of the dispute concerned the extent of recoverable party-and-party costs flowing from a prior liability trial in a Road Accident Fund claim. Specifically, the dispute focused on whether costs for attorney and counsel attendance beyond the first day of a multi-day trial could be allowed where the costs order did not expressly record the trial’s duration or specify the number of days for which costs were awarded.

2. Material Facts

The underlying RAF matter proceeded to a trial on liability set down for 24 July 2013, and it ran for three days: 24, 25, and 26 July 2013. After the three-day hearing, judgment was reserved.

On 11 February 2014, an order was granted in favour of the plaintiff (the present applicant) on liability. There was no written judgment containing reasons; the outcome was recorded only in an order. The order provided, in material part, that the plaintiff succeeded 100% on the merits, the defendant was to pay the proven or agreed damages, and the defendant was to pay the costs of suit in respect of liability only.

More than a decade later, on 2 July 2025, a bill of costs (containing approximately 188 items) was presented for taxation on an unopposed basis, limited to work done in respect of the liability portion. The present review was confined to four items: items 170–172 (attorney’s fees for attending court on each of the three trial days) and item 173 (counsel’s fees for the three trial days).

At taxation, the Taxing Master disallowed the fees for actual attendance at court beyond a limited extent. In relation to the attorney’s attendance (items 170–172), the Taxing Master allowed only two hours per day, despite the claim being for a full day. In relation to counsel’s fees (item 173), the Taxing Master disallowed counsel’s fees for the second and third day of trial.

The Taxing Master had been furnished with material aimed at corroborating the three-day duration and attendance, including the attorney’s contemporaneous handwritten notes and time sheets, and correspondence from senior counsel. A further letter was later provided by an expert witness who testified.

The stated case reflected the Taxing Master’s stance that the disallowances were justified, with the key rationale being that the court order of 11 February 2014 did not specify the duration of the trial nor expressly indicate that costs were awarded for more than one day. The Taxing Master treated the absence of such express specification as a basis to disallow party-and-party costs for the second and third day.

The court noted that corroboration difficulties were exacerbated by the fact that the bill was only taxed more than a decade after the costs order was granted, during which period file-management systems changed (including the implementation of CaseLines and the archiving of historical physical files), and an attempt to locate the trial judge’s bench book was unsuccessful due to the passage of time.

3. Legal Issues

The central legal question was whether, where a court order awards “costs of suit” (limited to liability), it is a necessary precondition for the order to specify the number of trial days in order for the successful party to recover party-and-party costs for attendance on each day of a multi-day trial.

Closely connected to this was whether the Taxing Master’s approach—disallowing costs for the second and third days because the order was silent about the duration—was consistent with the Taxing Master’s function under Rule 70, including the duty to allow costs that were necessary or proper.

The dispute primarily concerned the application of legal principles to largely common-cause procedural facts, coupled with an evaluative component regarding whether the costs claimed for attendance were necessary and whether the Taxing Master properly exercised the discretion vested in the taxation process.

4. Court’s Reasoning

The court approached the matter on the basis that the review turned on a single issue and could be resolved without oral argument, relying on the stated case and written submissions.

A core principle applied by the court was the text of Rule 70(3), which frames party-and-party costs as being allowed with a view to affording the successful party a full indemnity for all costs reasonably incurred in relation to the claim or defence. Rule 70(3) further directs the Taxing Master to allow costs that appear to have been necessary or proper for the attainment of justice or defending rights, while excluding costs incurred or increased through over-caution, negligence, or mistake.

On the facts, the court considered it self-evident that the trial lasted three days and that judgment was reserved at the end of the third day, with a favourable liability order handed down months later. In that context, the court reasoned that the attendance of both attorney and counsel for the conduct of the trial over all three days was necessary. This conclusion was treated as dispositive: on this ground alone, the court held that the review had to succeed.

In addition, the court dealt with the Taxing Master’s apparent insistence on corroboration and the rejection of the attorney’s contemporaneous notes as “adequate proof”. The court referred to Trollip v Taxing Mistress of the High Court and Others, which recognises that while a taxing officer may not ignore evidence showing work was not done, there is not a general duty on practitioners to “prove their claims” in the ordinary sense, given the professional duties and ethics expected of legal practitioners and counsel as officers of court. Consistently with that authority, the court held that, in the circumstances, there was incontrovertible evidence corroborating that the trial duration was three days and that attendance occurred as claimed.

The court further addressed the interpretive approach underlying the Taxing Master’s decision. The Taxing Master’s “literal” reading of the costs order—effectively treating “costs of suit” as if it covered only one day absent express mention of more—was considered to undermine the apparent purpose of the order. The court invoked the interpretive principle articulated in Natal Joint Municipal Pension Fund v Endumeni Municipality, namely that a sensible meaning is to be preferred over one that produces insensible or unbusinesslike results or undermines the document’s purpose. On this reasoning, the court concluded that interpreting the costs order to exclude necessary attendance for the second and third trial days was inconsistent with the purpose of a costs order, namely indemnification for costs reasonably and necessarily incurred by the successful party.

Finally, the court addressed quantum only to the extent necessary to craft the substituted allocatur. It clarified that the review was confined to items 170–173 and explained the amounts that should have been allowed and what reductions remained unchallenged (particularly an unchallenged reduction of R17 100,00 in relation to item 173).

5. Outcome and Relief

The court upheld the review.

The allocatur dated 2 July 2025, insofar as it related to items 170–173, was set aside and replaced with an order allowing the following amounts: item 170 at R5 751,00, item 171 at R5 751,00, item 172 at R5 751,00, and item 173 at R191 520,00.

The court made no order as to costs of the review proceedings.

Cases Cited

RH Christie Inc v Taxing Master [2021] ZASCA 152.

Coetzee v Taxing Master 2013 (1) SA 74 (GSJ).

Trollip v Taxing Mistress of the High Court and Others 2018 (6) SA 292 (ECG).

Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA).

Legislation Cited

No legislation was cited in the judgment.

Rules of Court Cited

Uniform Rules of Court, Rule 48.

Uniform Rules of Court, Rule 70, including Rule 70(3).

Held

The court held that it was not necessary for a costs order awarding “costs of suit” (in respect of liability) to specify the number of trial days as a prerequisite for recovering the costs of attorney and counsel attendance for each day of a multi-day trial. On the undisputed procedural reality that the liability trial ran for three days and that the matter required conduct over that period, the court held that the attendance costs for those days were necessary within the meaning of Rule 70(3) and should not have been disallowed on the basis that the order did not expressly mention the duration.

The court further accepted that the available material corroborated the three-day trial and rejected the approach that effectively required an express court order specifying days as a condition for recovery, especially where that interpretation undermined the indemnificatory purpose of party-and-party costs.

LEGAL PRINCIPLES

Rule 70(3) requires that, in party-and-party taxation, costs should be allowed to provide the successful party with a full indemnity for costs reasonably incurred, and the Taxing Master must allow costs that are necessary or proper for the attainment of justice or for defending rights, while excluding costs inflated by over-caution, negligence, or mistake.

A costs order awarding “costs of suit” should be interpreted sensibly and purposively, and an interpretation that undermines its purpose—indemnification for necessary and reasonable costs—should be avoided, consistently with the interpretive approach articulated in Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA).

In taxation, while a taxing officer may not ignore evidence showing that work charged for was not done, practitioners are not generally burdened with a duty to “prove” their claims in the strict sense; the taxing officer may take professional fee records at face value absent a proper basis to doubt them, in line with Trollip v Taxing Mistress of the High Court and Others 2018 (6) SA 292 (ECG).