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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NUMBER: 02317/2018
In the matter between:
MEC: HEALTH GAUTENG PROVINCIAL GOVERNMENT APPLICANT
And
TAXING MASTER OF THE HIGH COURT OF SOUTH
AFRICA, GAUTENG DIVISION, JOHANNESBURG FIRST RESPONDENT
BEATRICE NTULI OBO
MPILWENHLE THAPELO NTULI SECOND RESPONDENT
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES / NO
(3) REVISED: YES / NO
6 March 2026 __________________________
DATE SIGNATURE
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JUDGMENT
WINDELL J:
Introduction
[1] This is a review in terms of Rule 48 of the Uniform Rules of Court of rulings made
by the taxing master (the first respondent) during taxation of the second respondent’s bill
of costs. The taxation arises from an order for costs granted against the applicant in a
medical negligence action on a party and party scale.
[2] It is necessary to emphasise at the outset the limited ambit of such an order. Party
and party costs are intended to indemnify a successful litigant only for those costs that
were necessarily and properly incurred for the attainment of justice or for defe nding the
rights of a party. They do not permit the recovery of every expense incurred between
attorney and client.1
[3] The bill under consideration is the second respondent’s advocate’s bill of costs. In
the action, which proceeded to trial on the merits only and was finalised after eight days
of evidence, senior counsel claimed fees totalling R2 142 544.50. On taxation th e taxing
master substantially reduced the claim and ultimately allowed costs in the amount of R1
194 553.30.
1 Bowman v Avraamides 1991 (1) SA 92 (W) at 95B–E.
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[4] Notwithstanding the reduction effected by the taxing master, the applicant
contends that several items were allowed on an incorrect basis, particularly items relating
to travelling expenses, consultations and pre -trial attendances, and items which the
applicant submits fall properly within the category of attorney and client costs rather than
party and party costs.
[5] The taxing master furnished a stated case and supplementary explanations and,
after considering the written submissions, abides the decision of this Court.
Legal Framework governing review of taxation
[6] The purpose of taxation is to ensure that a party ordered to pay costs is not
burdened with excessive costs while at the same time ensuring that the successful litigant
is not deprived of a reasonable indemnity.2
[7] Rule 70(3) provides that the taxing master shall allow such costs, charges and
expenses as appear to have been necessary or proper for the attainment of justice or for
defending the rights of any party. It reads as follows:
‘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
2 CR Cilliers, M Cilliers. Law of Costs. Issue 50.
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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.’
[8] In Trollip v The Taxing Master (‘Trollip’),3 the Full Court held that:
‘The intention of rule 70(3) is to ensure that the ultimate winner of a suit should not have the fruits
of victory reduced by having to pay too high a proportion of his or her costs by way of an attorney
and client bill. It has also been recognised, on the other hand, that the interests of the loser must
be protected and that party should not be oppressed by having to pay an excessive amount of
costs. In Thusi v Minister of Home Affairs & another and 71 other cases Wallis J held that the
indemnity principle i s of general application in the field of costs, and that it has not become
outdated. We agree. The touchstone is for expenditure to be allowed which has been reasonably
and properly incurred.’
[9] A taxing master thus enjoys a wide but not unfettered discretion to allow, reduce
or reject items in a bill of costs. That discretion must be exercised judicially, reasonably
and on sound principle.
[10] Courts are slow to interfere with the exercise of that discretion. Interference will
occur only where the taxing master has failed to exercise the discretion judicially, acted
on a wrong principle, misconceived the facts or the law, or was clearly wrong.4 As stated
in Ocean Commodities Inc & Others v Standard Bank Ltd & Others ,5 the Court will
3 2018 (6) SA 292 (ECG) para [15].
4 Ocean Commodities Inc & others v Standard Bank of SA Ltd & others Ocean 1984 (3) SA 15 (A);
President of the Republic of South Africa & others v Gauteng Lions Rugby Union & another 2002 (2) SA
64 (CC) para [13].
5 Supra at 18E-G.
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interfere with a taxing master’s ruling only where the difference between its view and that
of the taxing master is so material that the ruling is vitiated.
Party and party costs and attorney client costs
[11] The distinction between party and party costs and attorney and client costs is
central to the present review. Herbstein and Van Winsen 6 describe attorney and client
costs in the following terms:
‘Attorney-and-client costs are the costs that an attorney is entitled to recover from a client for the
disbursements made on behalf of the client, and for professional services rendered. These costs
are payable by the client whatever the outcome of the matt er for which the attorney's services
were engaged and are not dependent upon any award of costs by the court. In the wide sense, it
includes all the costs that the attorney is entitled to recover against the client on taxation of the
bill of costs, but in the narrow and more technical sense, the term is applied to those costs,
charges and expenses as between attorney and client that ordinarily the client cannot recover
from the other party.’
[12] The significance of this distinction is that expenses which fall within the category
of attorney and client costs are ordinarily not recoverable from the opposing party where
the order is limited to party and party costs.
[13] The present review therefore requires consideration of whether certain expenses
allowed by the taxing master were properly recoverable on a party and party scale.
6 Herbstein and Van Winsen, Fifth Edition, p 953.
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Travelling expenses and consultations
[14] A central feature of the review concerns the taxing master’s decision to allow
several items relating to travelling expenses incurred by senior counsel.
[15] These items stem from senior counsel attending consultations with experts and
the instructing attorney in Johannesburg, as well as pre-trial conferences, while practising
in Mthatha.
[16] The taxing master accepted that such travel was permissible in terms of the Covid-
19 regulations then in force and reasoned that counsel was entitled to travel for purposes
connected with court proceedings.
[17] While it may be correct that the regulations permitted such travel, that is not the
correct enquiry in taxation. The relevant question is not whether travel was legally
permissible, but whether it was reasonably necessary for the purposes of the litigation.
[18] It is trite that a litigant is entitled to brief counsel of its choice. However, that
principle does not mean that the opposing party must necessarily bear the additional
costs arising from that choice. Where counsel is briefed from outside the jurisdictio n in
which the matter is heard, the question remains whether the additional costs associated
with such choice were reasonably and necessarily incurred so as to be recoverable on a
party and party scale.
[19] As was emphasised in City of Cape Town v Arun Property Development (Pty) Ltd
and Another ,7 the taxing master must consider the nature of the matter, the work
7 2009 (5) SA 227 (C).
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performed by counsel and the overall reasonableness of the fees claimed when
determining whether such costs were properly incurred. The enquiry is ultimately whether
the expenditure was necessary and reasonable in the context of the litigation.
[20] By the time the consultations and pre -trial conferences in question occurred,
remote consultation platforms such as Zoom and Microsoft Teams had become widely
used within the legal profession. Consultations with attorneys and experts as well as pre-
trial conferences were frequently conducted virtually.
[21] In those circumstances the taxing master was required to consider whether the
physical attendance of senior counsel at consultations and pre -trial conferences was
reasonably necessary or whether those engagements could reasonably have been
conducted remotely.
[22] The stated case indicates that this enquiry was not undertaken. Instead, the taxing
master proceeded on the basis that because travel was permitted under the Covid -19
regulations the associated costs were recoverable.
[23] That approach constitutes a misdirection. The enquiry in taxation is whether the
expense was reasonably and necessarily incurred for the conduct of the litigation.
[24] In circumstances where consultations and pre-trial conferences could reasonably
have been conducted virtually, the costs associated with senior counsel travelling
between Mthatha and Johannesburg cannot readily be justified on a party and party scale.
[25] Such expenses fall more appropriately within the category of attorney and client
costs and must be disallowed.
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Preparation and consultation items
[26] The applicant also challenges various items relating to consultations with the
instructing attorney and preparation for trial.
[27] As held in Trollip, 8 while a taxing master may not ignore evidence suggesting that
work charged for has in fact not been done, practitioners are not required to prove their
claims in the strict sense. Members of the legal profession are officers of the court and
are expected to display absolute personal integrity and scrupulous honesty. A taxing
master is therefore generally entitled to accept counsel’s fee list as prima facie evidence
of the work performed. At the same time, it remains the duty of the taxing master to ensure
that the expenditure claimed was reasonably incurred and that the fee charged is
reasonable.
[28] In the present matter the taxing master explained that the consultations in question
were necessary for the preparation of the case and for responding to requests for further
particulars as well as for purposes of the Rule 37 pre-trial procedures.
[29] Consultation between counsel and instructing attorneys forms a routine and often
necessary part of trial preparation. Such consultations do not fall outside the ambit of
party and party costs merely because the client was not present.
8 Supra para 20 and 21 with reference to General Council of the Bar of South Africa v Geach & Others
2013 (2) SA 52 (SCA) para 87.
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[30] In these circumstances it cannot be said that the taxing master acted on a wrong
principle. The allowance of these items falls within the taxing master’s discretion and no
basis has been established to interfere with those rulings.
Preparation of heads of argument
[31] The applicant further objects to the allowance of fees relating to the preparation of
heads of argument.
[32] Item 55 of counsel’s bill reflects that senior counsel charged for the preparation
and drafting of the plaintiff’s heads of argument over a period of five days from 15 to 19
August 2022. The fee claimed was calculated on the basis of 17 hours per day at a rate
of R68 000 per day. On taxation the taxing master reduced the amount claimed and
allowed a day fee of R35 000 per day.
[33] Approximately a month later, counsel charged a further five days, from 23 to 27
September 2022, for the preparation of replying heads of argument at a fee of R40 000
per day, amounting to R200 000 (Item 57). On taxation the taxing master reduced the
claim and allowed three days at a day fee.
[34] The preparation of heads of argument following a trial necessarily involves the
analysis of the evidence, consideration of the legal issues and formulation of written
submissions. In assessing the reasonableness of such fees, regard must be had to the
nature of the case, the issues in dispute and the volume of the record.
[35] In the present matter the trial extended over several days and the record was
substantial. The heads of argument ultimately filed were approximately 116 pages in
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length. While the record was voluminous, the issues that arose for determination were
not unusually complex for litigation of this nature.
[36] Taking these considerations into account, the time claimed in this instance is
excessive. Five days calculated on the basis of 17 hours per day for the preparation of
heads of argument cannot reasonably be justified on a party and party scale. The same
applies to the further five days claimed for replying heads of argument.
[37] While the taxing master reduced the amounts claimed, the reductions do not
address the underlying difficulty, namely the excessive number of hours claimed for the
preparation of the heads. The enquiry in taxation is not merely whether the fee charged
should be reduced, but whether the time spent was reasonably necessary.
[38] In addition, counsel charged for the preparation of replying heads approximately
one month after the main heads were drafted. Replying heads, by their nature, are
confined to responding to issues raised in the opposing party’s heads and do not ordinarily
require the same level of preparation as the principal heads.
[39] In a taxation conducted on a party and party basis, the enquiry is not whether
counsel in fact spent the time claimed, but whether the time was reasonably necessary
for the conduct of the litigation.
[40] In the circumstances of this matter the time allowed by the taxing master for the
preparation of heads of argument and replying heads exceeds what can reasonably be
justified on a party and party scale.
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[41] In my view a reasonable allowance would be three days for the preparation of the
main heads of argument at a day fee of R35 000 per day.
[42] As far as the replying heads of argument are concerned, a reasonable allowance
would be one and a half days at a day fee of R35 000 per day.
[43] The taxing master’s ruling in respect of these items must therefore be varied
accordingly.
[44] In the result the following order is made:
1. The review in terms of Rule 48 succeeds in part.
2. The items relating to travelling expenses incurred by senior counsel are
disallowed.
3. The taxation of Item 55 relating to the preparation of heads of argument is
varied so that the allowance is limited to three days at a day fee of R3 5 000
per day.
4. The taxation relating to the preparation of replying heads of argument is varied
so that the allowance is limited to one and a half days at a day fee of R35 000
per day.
5. Save for the above variations, the rulings of the taxing master are confirmed.
L. WINDELL
JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION, JOHANNESBURG
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Delivered: This judgement was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to the Parties/their legal
representatives by email and by uploading it to the electronic file of this matter on
CaseLines. The date for hand-down is deemed to be 6 March 2026.
APPEARANCES
For the Applicant: Ms N.N. Ntombela
Instructed by: Masinya Attorneys obo State Attorney, Johannesburg
For the Second Respondent: Ms R. Sempe
Instructed by: Ndlebe Msuthu Incorporated
Date of hearing: 22 October 2025
Date of judgment: 6 March 2026