President of the Republic of South Africa and Others v Gauteng Lions Rugby Union (CCT16/98) [2001] ZACC 5; 2002 (1) BCLR 1 (CC); 2002 (2) SA 64 (CC) (22 November 2001)

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[2001] ZACC 5
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President of the Republic of South Africa and Others v Gauteng Lions Rugby Union (CCT16/98) [2001] ZACC 5; 2002 (1) BCLR 1 (CC); 2002 (2) SA 64 (CC) (22 November 2001)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
                                                                                                                        Â
Case
CCT 16/98
THE PRESIDENT OF THE REPUBLIC OF
SOUTH AFRICA                      First Appellant
THE MINISTER OF SPORT AND
RECREATION                                     Second Appellant
THE DIRECTOR-GENERAL: DEPARTMENT
OF SPORT
AND RECREATION                                                                                       Â
Third
Appellant
versus
GAUTENG LIONS RUGBY UNION                                                          Â
First
Respondent
LOUIS LUYT                                                                                            Â
Second
Respondent
Decided on     :           22
November 2001
JUDGMENT
KRIEGLER J:
[1]        This is an
application to review the taxation of a party and party bill of costs.  It is
governed by rule 21 of
the Constitutional Court Rules (CC rules) read with rule
17 of the Rules of the Supreme Court of Appeal (SCA rules).
[1]
  On review only two rulings
by the taxing master are challenged: the amounts allowed as disbursements for
counsel
’
s fees and the calculation of a perusal fee for the attorney.  Yet the
case, the first of its kind in this Court, involves some issues
of principle
and presents an opportunity to give guidance to taxing masters and
practitioners about this mundane yet important aspect
of practice in this
Court.  This judgment will examine the Court
’
s general approach to the
taxation of party and party bills of costs in the light of precedent,
especially in the Supreme Court of
Appeal.  To that end the judgment will touch
on the respective jurisdictions, rules and practices of these two courts,
identifying
what they have in common and where they differ.  Finally the
judgment will deal in some detail with some of the problems that arise
in this
particular case.
[2]        The disputed bill of
costs relates to an appeal and an associated recusal application that between
them took up
eight days of debate in this Court during May 1999.  The appeal
was brought by three appellants against whom a judgment and order
had been made
in the High Court.  Details of those proceedings will be given later.  Suffice
it to say at this stage that they
were of a quite unusual nature.  In the court
below and in this Court the appellants were represented by one and the same
team of
three advocates, instructed by the State Attorney
’
s Pretoria office.  As for the
respondents, by the time the proceedings reached this Court only two of the
original four remained,
the Gauteng Lions Rugby Union (the Union) and its
one-time president, Dr Louis Luyt (Dr Luyt).  They,
[1]      Â
too, had the same joint legal
team, consisting of an attorney and three advocates, that had acted for them in
the High Court.
[3]        Shortly before the
appeal was due to be heard, notice was given that at the hearing application
would be made on
behalf of Dr Luyt
C
not the Union
C
for the recusal of all the
judges of the Court.  Once again details can best be left for later, this
introduction requiring no more
than mention that the opening three days of the
hearing were spent on argument relating to the recusal application.  At the
commencement
of the fourth day the Court announced that the application for
recusal was refused, the reasons to follow later.  The appeal itself
was then
argued on that day and the succeeding four.  Midmorning of the seventh day
leading counsel for the respondents announced
that their mandate had been
withdrawn and they were thereupon given leave to withdraw from the
proceedings.  This they did and Counsel
for the appellants then delivered their
replying submissions,  among others arguing for a punitive award of costs on
the appeal
as well as the recusal application.
[4]        Some four months
later the Court delivered its judgment on the dismissal of the recusal
application
[2]
but reserved the costs of those proceedings for consideration in the judgment
on the merits of the appeal.  This main judgment
C
about which more later
C
  upheld the appeal with costs
against the two respondents jointly and severally.
[3]
  In respect of the recusal
there was a separate award of costs in favour of the appellants.  This latter
order, however, was against
Dr Luyt alone.  Both awards were on the party and
party basis and included the costs consequent upon the employment of three counsel.
[5]        In July 2000 the
appellants
’
attorney submitted to the taxing master
[4]
for taxation a bill of fees and disbursements drafted on the party and party
basis.  The total bill amounting to R1 139 145,30 was
made up of attorneys
’
fees of R234 660,25 and
disbursements of R904 485,14, being largely counsel
’
s fees.  The disbursements
claimed in respect of counsel
’
s fees were supported by vouchers in the form of fee
lists submitted to the attorney by each of the three advocates.  The fee lists
and accompanying time sheets reflect that counsel debited on the basis of a fee
per hour or per day for specified time spent on itemised
work done by each of
them in connection with the appeal.  The rate charged by counsel was, for the
senior, R750 per hour and R7
500 per day and for each junior two-thirds (i.e.
R500 and R5 000).  The time booked falls into two main periods, the first in
December
1998 and January/February 1999 in respect of work described variously
as
A
Preparation
of written submissions
,
A
Preparing heads of argument for Constitutional Court
 or
A
Preparation for and finalisation
of heads of argument for Constitutional Court appeal
.
[6]        There are also some
debits during this first period relating to an application for  postponement of
the appeal.Â
Both these sets of early debits are probably ascribable to a
change in the date set for the hearing of the appeal.  The Court had
originally
(in early December 1998) set down the appeal for March 1999 and put the parties
on terms as to the prior lodging of their
written submissions.  The date fixed
for the hearing of the appeal did not suit the respondents
’
legal team and in January 1999
they made representations to the Court for a postponement of the appeal to
later in the year.  The
dates were then shifted and the appeal was set down for
4 to 10 May 1999 with the caveat that counsel should be available to continue
thereafter if necessary.  The second period of preparatory work was April/May
1999 when the fee lists reflect counsel spending time
in considering the
respondents
’
answering argument and drafting the reply on behalf of the appellants,
as also for preparation for and attendance at eight days of
hearing.
[7]        Of the items
challenged at the taxation only two remain unresolved: counsel
’
s fees and the perusal fee, both
of which the taxing master reduced but still allowed at levels well above those
contended for on
behalf of the respondents.  Their contention was that the sum
total of what should be allowed for counsel
’
s fees should be an amount
calculated on the basis of a first day fee on appeal, which takes into account
all the preparatory work
up to that stage plus the appearance on that day, and
refreshers of a half of the first-day fee for each of the succeeding days of
the hearing.  The respondents agreed that the fees of the juniors should be
taxed at two-thirds of those of the senior.  The first
day fee that was
proposed on this basis was R45 000 for the senior, R30 000 for each junior and
refreshers of R22 500 and R15 000.Â
For the eight days this adds up to a total
of R472 500, made up as to R202 500 for the senior and R135 000 for each
junior.  The
submission advanced on behalf of the respondents at the taxation
regarding the perusal fee for the attorney was that it should be
calculated at
R17,00 per page for 940 pages and not, as reflected in the bill, at R27,00 per
page for 1 390 pages, i.e. at R16 150
instead of R37 350.
[8]        On 27 July 2000 the
taxing master affixed her
allocatur
to a bill that reflects that on
taxation she allowed a total of R1 054 986,85 inclusive of VAT and fees for
drawing the bill and
attending at the taxation.  The main component of the
overall bill was counsel
’
s fees, which were allowed in an amount of R784 000 made up as to R336
000 for the senior and R224 000 for each of the juniors.Â
These amounts the
taxing master notionally allocated evenly to each of the eight days of hearing,
i.e. for the senior a daily fee
of R42 000 was allowed and for the juniors R28
000 each.  She also allowed the appellants
’
attorney a perusal fee of R25
650 for perusing the judgment of the court of first instance, calculated at
R27,00 per page for 950
pages.  These two items, i.e. the disbursements in
respect of counsel
’
s fees and the particular attorney
’
s perusal fee are still in
dispute, involving a difference of R311 500 and R9 500 respectively.
[9]        The respondents
called on the taxing master in terms of SCA rule 17(3)
[5]
to state a case for the
decision of the Court and the requisite steps under the succeeding sub-rules
have been complied with.
[6]
Â
It is not necessary to call for any further written submissions or oral
argument
C
there are no disputed findings of fact, the respective submissions of
the parties are clearly set out in the papers and the issues
are defined.
[10]      Before considering the
specific issues raised by the application for review, some preliminary
observations should be
made about the nature of this Court
’
s review jurisdiction in a case
such as this as also about the test it should apply in deciding whether or not
to interfere with the
taxing master
’
s exercise of her powers.  The
parties did not suggest any difference of principle between the nature of this
Court
’
s review
jurisdiction under CC rule 21 and that of the SCA when it acts under its
corresponding rule 17.  Nor is any apparent.Â
On the contrary, the very
circumstance that this Court
’
s powers and functions in regard to review of its taxing
master
’
s performance of her duties are defined with reference to the rules of
the SCA would on the face of it suggest uniformity.  More
substantively,
however, there is nothing inherent in the distinction between the respective
areas of competence of the two courts
to indicate that there should be any
difference between their respective powers and duties to control their
functionaries in the
performance of their official duties.
[11]      Nor is there any
difference in principle between the two courts in relation to the law of
costs.  Although this Court
has long since made plain that, for reasons of
policy dictated by and related to its constitutional jurisdiction, its approach
to
awards of costs differs in some respects from that in the other courts,
[7]
this would not ordinarily
bear on the actual details of costs or their taxation.  As regards such detail
there may obviously be
differences between this Court and the SCA by reason of
differences in the respective rules or practices of the two courts.  There
is
an example of such a difference in this case, which will be mentioned later.Â
In general, however, there is no reason to deviate
from the principles
developed by the SCA with regard to the taxation of bills of costs by its
taxing master.
[12]      In any event, in
relation to matters closely related to the practice of law and the conduct or
remuneration of its
practitioners, this Court will generally rely on the
experience and specialised knowledge of the SCA.  This is so even where a case
relating to professional legal conduct is alleged to involve constitutional
questions.  In the case of
De Freitas and Another v Society of Advocates of
Natal (Natal Law Society intervening)
[8]
Langa DP explained that it is not ordinarily appropriate for this Court to deal
with constitutional issues in cases relating to regulation
of the advocates
’
profession and the fitness of
its members to practise without knowing the views of the SCA.  While the
bifurcated apex of the judicial
hierarchy may have its disadvantages, as
evidenced by an interlocutory skirmish about jurisdiction in this very
litigation
[9]
and in cases like
S v Boesak,
[10]
its benefits should not be overlooked.  Here, for instance, it is instructive
for this Court to have regard to decisions of the
SCA regarding the relevant
principles, as it was for the parties and the taxing master who were sensible
in taking a bearing as to
counsel
’
s fees from what the taxing
master of the SCA has awarded in comparably heavy cases in that Court.
[13]      It is settled law that
when a court reviews a taxation it is vested with the power to exercise the
wider degree of
supervision identified in the time-honoured classification of
Innes CJ in the
JCI
case.
[11]
Â
This means
C
     A
. . . that the Court must be satisfied that the Taxing Master was
clearly wrong before it will interfere with a ruling made by him
. . .
viz
that
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
.
[12]
This dictum has not only been
reaffirmed fairly recently by the SCA in
JD van Niekerk en Genote Ing v
Administrateur, Transvaal
[13]
but has been approved and followed by the Namibian Supreme Court in
Hameva
and Another v Minister of Home Affairs, Namibia
.
[14]
  There is therefore no
apparent reason why this Court should adopt a different approach to a review of
taxation under CC rule 21
or apply a different test for interference with
decisions of its taxing master.  In what follows, therefore, the enquiry will
be
directed towards establishing whether in respect of any disputed items this
Court
’
s view
differs to the stated extent from that of the taxing master.
[14]      To this there is a
qualification, however.  Not all decisions by the taxing master are equally
insulated from judicial
interference.  In some instances, for example, where
the dispute relates to the quantum of fees allowed by the taxing master, the
courts are slow to interfere with the taxing master
’
s assessment.  But there are
other cases
C
     A
. . . where the point in issue is a point on which the Court is able to
form as good an opinion as the Taxing Master and perhaps,
even a better
opinion.
[15]
The prime example of such cases
is where the court has better knowledge of the particular question than the
taxing master, for instance
where a point as to admissibility of a segment of
evidence is determined by the court and subsequently bears materially on costs
items in dispute.  The instant is another example of this type of case.  As
will be shown shortly, it was in several respects an
unusual case and the
taxing master
’
s knowledge and appreciation of some of its features cannot reasonably
be expected to match those of the members of the Court who
participated in the
proceedings.
[15]      In all taxations it is
important to keep in mind the one overarching general principle applicable to
all awards of
party and party costs, a principle which applies to this Court as
it does to the SCA.  This principle was put in the following terms
by Innes CJ
in
Texas Co. (S.A.) Ltd. v Cape Town Municipality
:
     A
Now costs are awarded to a successful party in order to indemnify him
for the expense to which he has been put through having been
unjustly compelled
either to initiate or to defend litigation . . .
.
[16]
This principle is echoed and
fleshed out in Note I to SCA rule 18G(5), which reads as follows:
     A
Note I ‑ With a view to affording the party who has been awarded
an order for costs
full indemnity for all costs reasonably incurred
by
him or her in relation to his or her claim or defence and
to ensure that all
such costs shall be borne by the party against whom such order has been made
,
the taxing master shall on every taxation
allow such costs, charges and
expenses as appear
to him or her 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 them,
no costs shall be allowed which
appear to the taxing master to
have been incurred or increased through
overcaution, negligence or mistake
, or by payment of a special fee to
counsel or by other unusual expenses.
  (Italics added.)
This Note 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:
     A
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.
  (Italics added.)
[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.  Before turning to a consideration of
that question, however, mention must be made
of a major hidden complication.Â
That is that there is a fundamental error in the bill of costs which was not
picked up when the
bill was debated, taxed and subsequently submitted for
review.  The mistake originated in the bill prepared on behalf of the
appellants.Â
It is drawn as a single bill reflecting all the fees and
disbursements claimed notwithstanding that the Court quite specifically
made
two distinct orders as to costs, one relating to the recusal application and
the other to the appeal itself.  Dr Luyt alone
was to bear the costs of the
recusal while he and the Union were jointly and severally liable for the costs
of appeal.  The costs
of these two proceedings cannot simply be rolled into one
as the bill purported to do.  Not only is that not what the Court ordered
but
it unjustly saddles the Union with a debt for which it is not liable.
[17]      There is no indication
that in drafting the bill any attempt was made to distinguish the recusal costs
from those related
to the appeal.  The notice of taxation and the bill itself
describe the parties as they were in the High Court, i.e. still listing
the
original four respondents, and do not specify the award or awards of costs
pursuant to which they purport to be issued.  But
it is apparent from but a
superficial perusal of the bill that it incorporates costs that relate to both
the appeal and the recusal.Â
Thus, for instance, items 182 to 188, 195 to 199
and 201 to 228 (involving attorney
’
s fees totalling approximately
R4 000) are unmistakably related to the recusal; and a time sheet submitted by
one of the two junior
advocates in support of his fee list for April 1999 shows
that on 29 and 30 April 1999 some 17 hours were spent (debited at R500
per
hour) on perusing the recusal application and preparing to meet it.  His fee
list for May 1999 speaks of preparation and court
appearances
A
on recusal and on appeal
 without allocating debits to
one or the other.  It is obvious, however, that the fees for three of the eight
days debited by the
attorney and counsel for their attendance at court are
directly ascribable to the recusal application, which took up the opening
three
days.
[18]      It may have been of
little concern to the appellants which of the two respondents paid their costs
C
and therefore which should be
identified in the bill as liable
C
but it certainly made a
difference to the respondents, particularly the Union, without whose informed
mandate the attorney was not
entitled to consent to the consolidation of what
should have been two sets of costs.  On the respondents
’
approach to counsel
’
s fees, at least three
refreshers for each advocate and the attorney
’
s fees mentioned in the previous
paragraph are recusal costs.  That would mean that counsel
’
s fees of R157 500 (3 x R22 500
plus 2 x 3 x R15 000) and the attorney
’
s recusal charges have wrongly
been debited to the Union, albeit jointly and severally with Dr. Luyt.  The
parties having overlooked
the mistake, the taxing master did likewise when
taxing the bill.  In the result one composite bill was taxed.
[19]      Be that as it may, the
items challenged at the taxation and the bases of the challenges are unrelated
to the failure
to separate the two sets of costs.  They apply to the fees and
disbursements of both the appeal and the recusal regardless of their
separation, as do the points raised by the respondents in their subsequent
application for review of the taxation.  Their notice
of review specifies only
two findings by the taxing master that ought in their submission to be
corrected: the fees allowed for counsel
and for the perusal.  The written
submissions subsequently filed on behalf of the respondents specify how it is
suggested these
fees should have been arrived at by the taxing master.
[20]      The issue relating to
the calculation of the perusal fee involves a relatively trivial amount and is
really quite simple.Â
It should therefore be resolved first to clear the decks
for the more substantial and demanding problem of the assessment of counsel
’
s fees.  It is common cause that
a fee is recoverable for the perusal by the appellants
’
attorney of the judgment of the
court of first instance and that it is to be calculated at a rate per page for
950 pages.  The only
issue is whether the respondents are correct in contending
that the fee per page should be R17,00 or whether it should be R27,00
as the
bill claimed and the taxing master allowed.  The respondents rely on SCA rule
18C(3)(a), which allows  a fee for
C
     A
[a]ttendance on and perusal of any application or affidavit or any other
document not elsewhere provided for . . .
while the appellants contended
and the taxing master agreed that the appropriate rubric was Rule 18C(1)(a),
which relates to
C
     A
[p]erusing judgment of court
a quo
when taking instructions for
the continuation of an appeal or cross-appeal, where leave to appeal is not
required . . .
.
[21]      On the face of it, the
contention advanced by the respondents is wrong.  It is common cause that the
fee relates to
perusal of the judgment of the court
a quo
; it is also
common cause that the work was done when the attorney was
A
taking instructions for the
continuation
  C
i.e. with a view to pursuing
C
the appeal against the
judgment; and lastly it is common cause that leave to appeal was not required.Â
This was so held in a judgment
of this Court on an interlocutory issue related
to jurisdiction to hear the appeal in this matter.
[17]
  In terms of section 167
of the Constitution this Court had exclusive jurisdiction to deal with the
principal issues raised by the
appeal; and the orders made in respect thereof
by the court of first instance were inchoate unless and until confirmed by this
Court.Â
On a plain reading of rule 18C(1)(a) therefore, it was the appropriate
heading under which to assess this fee.  Even if that were
not so, it certainly
is more appropriate than rule 18C(3)(a), a general fall-back provision aimed at
the perusal of more mundane
documents.
[22]      The judgment in the
High Court certainly did not fall into that category.  Apart from the fact that
judgments are
inherently of a more important nature, this particular judgment was
an exceptionally long and turbid document that played an important
part in the
procedural preliminaries to the eventual consideration of the appeal.  The
appellants lodged with the High Court an
application for leave to appeal to the
SCA soon after the adverse order had been made against them in that court and
while they were
awaiting the learned judge
’
s reasons.  Later, once the
reasons had been given (in an 1159 page judgment) they lodged a notice of
appeal in this Court and an
accompanying application for condonation for its
late filing.  This application was opposed and resulted in a debate in this
Court
about its jurisdiction to hear the appeal, which necessitated close
analysis of the judgment.  In the circumstances the taxing master
was entitled to
have regard to the general guideline in Note I to rule 18G(5) that she should
afford the appellants full indemnity
for all costs reasonably incurred and
allow such costs as appear to her to have been properly incurred in the defence
of the rights
of the appellants.
[23]      Moreover and in any
event, as will appear presently, this was pre-eminently a case that presented,
in the words of
Note II to rule 18G(5)
C
     A
. . . extraordinary or exceptional circumstances where the strict
execution [of the tariff] would be unjust . . .
and obliging the taxing master
to
C
     A
. . . 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.
In doing so the taxing master
would have been entitled to take into account the circumstance that the items
under Rule 18C were tailored
for the leave to appeal procedure of the SCA and
do not fit the corresponding procedure of this Court quite as snugly.  Here
rule
18 of the CC rules prescribes a procedure that differs quite substantially
from that in the SCA.
[24]      On the first issue
submitted for review the finding is therefore that the taxing master was
correct in deciding that
R27,00 per page is the appropriate tariff at which to
calculate the attorney
’
s fee for perusing the High Court judgment.  The fees allowable under
this item were correctly taxed in the amount of R25 650.Â
This is quite clearly
an item relating to the appeal and would be taxable as against both
respondents.
[25]      As regards counsel
’
s fees, five propositions are
advanced in support of the basic complaint on behalf of the respondents that
the amounts allowed are
excessive:
            (1)
  A
As the Rules of the Supreme Court
of Appeal regarding taxation and attorneys
’
fees are to be applied by this Court it is submitted
that the practice which has been developed by that Court ought to be applied.
            (2)
  A
The guiding principle [in that
Court] when taxing counsels
’
fee is to determine what the reasonable fee is for the
value of the work done.
            (3)
  A
The time actually spent in
preparation of an appeal is not a decisive criterion for determining the
reasonableness, between party
and party, of a fee for that work.  Time spent
cannot displace an objective assessment of the features of the case.
            (4)
  A
The practice in the taxation of
costs in appeals before the Supreme Court of Appeal is that a composite (i.e.
all inclusive) fee is
established and that such fee comprises the drafting of
heads of argument, preparation and the arguing of the appeal.
            (5)
  A
It is presently the practice of
the Taxing Master of the Supreme Court of Appeal to allow for senior counsel a
composite fee of between
R30 000 - R45 000 (depending on the complexity of the
matter) for the first day with a refresher for each day thereafter of half
of the
amount allowed for the first day.  Junior counsel are allowed two thirds of
senior counsel
’
s fees.
The respondents also contend
that the taxing master did not apply her mind to the relevant issues, she
having
C
     A
. . . simply divided the total amount of senior counsel
’
s accounts by the number of court
days for the appeal (i.e. 8) and then allocated the result (i.e. R42 000,00) to
each particular
court day.  After establishing senior counsel
’
s fees in this manner the Taxing
Master allowed each junior counsel two thirds as their respective daily fees.
[26]      The taxing master did
not specifically respond to this submission in the stated case she submitted
for the review.Â
She had however set out in her report filed earlier how she
set about taxing counsel
’
s fees.  Her approach, she reported, had been to apply
C
     A
. . . the principles as laid down in
J D van Niekerk en Genote Ing v
Administrateur, Transvaal
1994 (1) SA 595
(A) . . . with regard to the
fixing of a global fee for counsels, encompassing fees for preparation,
drafting of heads of argument
and the arguing of the matter.
She further explained that in
seeking to arrive at amounts that were neither excessive for the respondents
nor insufficient for the
appellants she took the following five factors into
account:
The complexity of the matter
:
A
Complex and important
constitutional questions
.
The volume of the case
:
A
The court record was eight
volumes.  The record consists of 6684 pages.  Judgment of the court a quo
consists of 1159 pages.
The prevailing level of counsel
’
s fees
:
A
All counsels
’
fees including VAT.  Thus, R784
000,00 minus R109 760,00
.
Inflation:
Here the taxing master did not
elaborate but she apparently took the erosion in the value of money in the
intervening period into
account in comparing the level of fees with those
allowed in
Van Niekerk
’
s
case.
Counsel must be fairly
compensated for preparation and presentation of argument:
Here the taxing master, relying
on the fee lists rendered by counsel, did the calculation on the basis that
senior counsel and the
two juniors were in court for 8 days and that they spent
361, 330 and 349 hours respectively in preparation.
[27]      The appellants support
the taxing master
’
s reliance on
Van Niekerk
’
s
case,
[18]
agree with the criteria
she accordingly identified and endorse her evaluation of these.  All in all
they submit that she performed
her functions and exercised her discretion
correctly.  They draw attention to the feature that the counsel
’
s fees put into the equation by
the taxing master were charged according to debiting guidelines agreed between
the Bar and the attorneys
’
profession.  In terms of the agreement between the respective
professional associations, advocates book the time actually spent
in the
preparation of a case and charge an hourly or daily rate for such time.
[28]      The attitude of the
courts, however, is that this rate-per-time basis is to be no more than a
pointer in assessing
what is a reasonable fee to allow on taxation for
particular services rendered by counsel.  Indeed, in
Van Niekerk
’
s
case Corbett CJ roundly condemned
this basis as putting a premium on slow and inefficient work and conducing to
the charging of fees
that are wholly out of proportion to the value of the
services rendered.  The learned Chief Justice reaffirmed the following
statement
in an earlier judgment of that Court,
Scott and Another v Poupard
and Another
:
     A
Although not wholly irrelevant to the question of complexity and bulk,
the time actually spent in preparation of an appeal cannot
be a decisive
criterion for determining the reasonableness, between party and party, of a fee
for that work, and thus displace an
objective assessment of the features of the
case.
[19]
The effect of blithely adhering
to the rate-per-time basis is graphically illustrated in
Van Niekerk
’
s
case where counsel
’
s fees on appeal that were
sought to be recovered on a party and party basis were described in the
judgment as
A
kommerwekkend
,
A
beswaarlik aanvaarbaar
,
A
uiters vergesog
 and
A
buitensporig
.
[20]
[29]      The respondents do not
contend that the same mistake of principle was made in this case.Â
Notwithstanding a generalised
complaint that the taxing master had not applied
her mind and had made incorrect use of senior counsel
’
s rate-per-time debits, they
acknowledge that she did not accept the rate-per-time basis as the sole
criterion, that she followed
the lines indicated in the Appellate Division
cases cited above and that in so doing she correctly identified the relevant
criteria,
being the five she enumerated.
[21]
Indeed, they do not really challenge the taxing master
’
s broad approach to the
evaluation of the relative weight of such criteria.
[30]      The respondents
’
principal complaint in seeking
to review the amounts allowed on taxation for counsel
’
s fees, is that the taxing
master gave too much weight to the total amount debited by senior counsel on
the rate-per-time basis.Â
Although the respondents raise other objections as
well, this is the basic cause of complaint.  It affects not only the senior
’
s fees but also those of the
juniors, which were taxed at two-thirds of the senior
’
s. As noted above,
[22]
they contend that
first-day fees for senior counsel in the Supreme Court of Appeal are currently
being allowed in party-and-party
taxations at between R30 000 and R45 000,
which latter figure they suggest would be appropriate in this case for the
appellants
’
senior counsel.  As regards the fees for each of the two juniors, they
do not challenge the taxing master
’
s decision to allow two-thirds
of the senior
’
s fee and contend that R30 000 ought to be allowed.
[31]      The second ground
advanced by the respondents is important in terms of principle and possibly
even more important in
terms of money than the first, with which it interacts.Â
This second contention is that in principle taxation as between party and
party
of advocates
’
fees on appeal to the SCA does not permit separate fees for the
preparatory work such as mastering the facts, conducting legal research
or even
for drafting the heads of argument.  They say that the settled practice of the
SCA is to allow a relatively heavy composite
first day fee into which is rolled
together the fees for all the work done in preparation plus the remuneration
for the appearance
to argue the matter; and for the succeeding days there are
daily refreshers at a much lower rate.  In the alternative they contend
that
this is certainly the way in which counsel
’
s fees on appeal to the SCA are
normally taxed as between party and party.  Therefore, it is said, the taxing
master erred in allowing
an uniform fee of R42 000 per day for the senior and
R28 000 for the juniors for each of the eight days of the hearing.  It will
be
remembered that according to the respondents the allowance for the senior
should have been R45 000 for the first day plus seven
refreshers of R22 500
each, a total of R202 500; and for each junior two-thirds, namely R30 000 plus
seven refreshers of R15 000,
totalling R135 000.  The respondents therefore
submit that the overall total for counsel
’
s fees should be R472 500.
[32]      The respondents are
correct as to the practice of the SCA in regard to separate debits for
preparatory work and for
the appearance on appeal.  Many reported cases make
that clear, the most illustrative probably being the judgment of Corbett CJ
in
the
Van Niekerk
case.
[23]
Â
As roundly as he condemned the rate-per-time basis of assessing counsel
’
s fees, as strongly did he
express himself against taxing counsel
’
s fees for the preparatory work
separately from the appearance fee.  The judgments in
Scott v Poupard
[24]
and
Ocean Commodities
[25]
are no less firm in their
rejection of such cumulative debiting.  Of course, what underlies this consistent
and vehement rejection
is that such piecemeal charging often serves to
camouflage excessive fees.  Though this is only too plain from the
uncharacteristically
acerbic observations of Corbett CJ in
Van Niekerk
,
it is also an undertone of the other two judgments cited.  This is because the
ultimate object of the exercise of taxation
C
and hence of a review of
taxation
C
is to determine a reasonable fee to be recovered as between party and
party for the work done by counsel; or as it is put in Note
I to SCA rule
18G(5), to
C
     A
. . . 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 . . .
[33]      It is therefore as
well to recognise that the two points advanced by the respondents, though
notionally distinct, are
very much interrelated.  The real complaint that the
respondents have against the taxation is not that the taxing master failed
to
apply her mind.  Nor is it really that she ascribed too much weight to the time
spent in preparation and made over-generous allowance
for it or that she should
have allowed less on refresher than for the first day.  These are but handy
pegs, as is evident from the
proposals by the respondents in their written
contentions in response to the stated case.  At bottom the complaint is that
the taxing
master allowed the successful appellants to recover from the
respondents an unreasonably heavy contribution towards the fees payable
by the
appellants to their advocates.
[34]      In assessing how much
to allow, the taxing master was faced with a welter of information, much of it
confusing.  It
was an exceptional case, as is borne out by some aspects of the
bill of costs now under review.  As regards the current question
of counsel
’
s fees for preparation the
picture is particularly confusing.  Starting in December 1998, at a time when
the appellants
’
written submissions were scheduled to be delivered by 3 February 1999
for a hearing the following month, counsel for the appellants
started clocking
hours for preparing such submissions.
[26]
Â
Then, after the dates had been shifted, each of the appellants
’
advocates intermittently booked
hours and occasionally days
C
some times several days on end
C
now working together and then
independently of one another, each booking his own hours.  In addition, at the
end, counsel each debited
a fee for each day of the eight-day hearing of the
application for recusal and then the appeal.Â
[35]      Faced with this
complex picture, the taxing master decided to start by trying to arrive at a
reasonable composite fee
for the senior for all the work he put into the appeal
and the recusal application.  In her report she outlines the criteria she
took
into account
[27]
in coming to the conclusion that the total amount he had debited was
substantially reasonable (deducting VAT).  The respondents
do not dispute that
these are the factors which in principle she ought to have considered and the
parties are agreed as to their
cogency.  The enquiry should then turn to an
evaluation of their weight.
[36]      The fees allowed are
unusually high; even those proposed by the unsuccessful litigants
’
attorney are well above the
norm.  But then it was an unusual and in many respects unprecedented case.  In
essence it involved
allegations that the President of the Republic of South
Africa, acting in concert with a minister of state and the administrative
head
of the latter
’
s department, had
C
initially on paper and thereafter in oral evidence
C
committed perjury in order to
cover up that the President had abdicated in favour of the minister the
functions of the President
with regard to the appointment of a commission of
enquiry into a matter of public interest.  Besides, its sheer bulk was
daunting.Â
The judgment of the High Court was so extensive that the publishers
of SA Law Reports decided that although it had to be reported,
it could not be
reported in full.  It ran to no less than 1159 typewritten pages and is quite
exceptionally prolix.  The record
of the proceedings in the High Court which
was prepared for the appeal was well over 6 600 pages, consisting of an unusual
number
and confusing set of affidavits: founding, answering, replying,
supplementary, explanatory and so forth; and then several volumes
of
transcription of oral evidence.  The written argument lodged by counsel in the
appeal, excluding photocopies of authorities cited,
eventually exceeded 1 000
pages.
[37]      The proceedings in the
High Court had started as an opposed urgent application on notice of motion.Â
There were seven
distinct causes of action advanced in support of a claim to
review and set aside the decision by the President to appoint a commission
of
enquiry to investigate the affairs of the first respondent.  After several days
of hearing the matter was referred to oral evidence,
essentially on the ground
that the veracity of the denials on oath by the President and the other
appellants of allegations made
by the respondents had to be tested in
cross-examination.
[38]      The legal, political
and constitutional implications of this unprecedented order
[28]
were weighty and were
underscored when the judge ordered the President to appear before him to be
cross-examined.  The responsibility
cast on counsel for the President by these
orders must have been burdensome.  In any event, the hearing of oral evidence
then occupied
18 days.  Ten witnesses were called and four interlocutory
applications punctuated the proceedings.  The President, the Minister
of Sport
and Recreation and the Director-General of the latter
’
s department duly appeared,
testified and were cross-examined as to their credibility.  The President
himself spent many hours under
cross-examination, it being hinted but never
openly said that he was lying.  The upshot was an adverse credibility finding
by the
judge against each of the appellants and an order substantially in the
terms sought by the respondents.
[39]      The case and its
outcome elicited considerable public debate and no little anger. Intemperate
public criticism of the
judge generated further heat, so much so that the
Judge-President of the court concerned had to intervene publicly.  When the
case
then went on appeal the animosity was exacerbated.  One of the principal
lines of challenge to the findings and conclusions of the
court of first
instance that was foreshadowed in the papers filed by the legal representatives
of the appellants, was that the judge
of first instance had been biassed.          Â
[40]      Then, shortly before
the appeal was due to be heard, Dr Luyt initiated an application for the
recusal of all of the
judges of this Court, targeting some for special
submissions as to their unfitness to hear the case but leaving it to the
respective
consciences of the others whether to continue or not.  On 4, 5 and 6
May 1999 argument relating to the recusal application was heard
and on Friday 7
May the application was refused, the reasons being reserved.  The judgment
subsequently handed down in relation
to the recusal, 83 pages long, explains
the imputations against the integrity of the members of the Court and the
constitutional
implications inherent in the application.
[29]
  Though the appellants
were not formally parties to the recusal proceedings, their counsel were
inevitably involved as officers
of the court and the hearing of the appeal on
which they had been briefed was both complicated and delayed.
[41]      Argument on the merits
of the appeal commenced on 7 May with counsel for the appellants presenting
argument, continuing
on Monday 10 May and half of the next day. After the
mid-morning adjournment on 12 May counsel for the respondents, having traversed
less than half of their argument, announced the withdrawal of their mandate and
asked to be excused from further participation.Â
The case then continued on 12
and 13 May without the benefit of further argument on behalf of the respondents
and counsel for the
appellants having to adapt their strategy and argument
accordingly.  On 10 September 1999 the Court delivered a judgment of 198
pages
(containing 260 paragraphs).
[30]
Â
This judgment is not only very long but emphasises
A
the multiplicity and complexity
of the factual and legal conclusions it contains, the sweep and gravity of
counsel
’
s submissions in this Court and the inherent importance of the case . .
.
.
[42]      Apart from the quite
unusual bulk of the record and the major complication presented by the belated
and sweeping application
for recusal, the case presented a wide range of
constitutional conundrums with serious implications, not only in the particular
case
but as precedent for later cases.  Clearly the matter placed a heavy burden
on counsel in relation to the multitude of legal problems
and factual issues.Â
More importantly, the underlying politico-legal issues and their constitutional
ramifications demanded much
research and mature reflection by counsel.  Besides
the merits of the appeal itself and the shadow cast over the reputation of the
Head of State by the findings of the judge in the High Court, the case bore
directly on the professional integrity and judicial career
of that judge and of
the judges of this Court.  The constitutional issues involved in and the
political implications of the order
directing the Head of State, to give
evidence in a court of law were particularly grave and complex.  Likewise the
judicial delving
into the inner workings of the office of the head of the
executive branch of the government presented difficult and important questions
for counsel to address in their argument to this Court.
[43]      To a degree the same
could be said for the recusal application.  Although not intellectually or
professionally as
demanding as the appeal itself, the task of counsel for the
appellants was demanding even when it came to this part of the case.Â
The dual
duty of counsel, to the client and to the court, is trite and ordinarily
presents little difficulty.  In a situation such
as occurred here, where the
challenge was directed at the bench itself and implied a measure of judicial
impropriety, counsel on
both sides had an awkward role to fulfil, promoting the
interests of their clients but at the same time performing their duties towards
the Court.  In the case of counsel representing the President the problem was
compounded in that the very basis of the generalised
application for recusal
was that the judges were reasonably to be perceived as seeking to favour their
client.  All these things
being considered, there can be little doubt that the
taxing master was obliged to attach exceptional weight to the first, second
and
fifth criteria she listed: (i) The complexity and importance of the case; (ii)
the volume of the case; and (iii) fair compensation
for the preparation and
presentation of the case.
[44]      As for the
last-mentioned factor, it should be noted that there is a difference between
the practice in the SCA regarding
heads of argument and the associated appearance
of counsel at the hearing and the practice in this Court.  In the SCA the
emphasis
is on the oral presentation of argument by counsel in open court with
the heads of argument serving largely as a preliminary guide
to the court.Â
Thus rule 10 of the SCA rules refers to
A
main heads of argument
 which are to be
A
succinct and without unnecessary
elaboration
 and must not contain
A
lengthy quotations from the record or authorities
.  In this Court, however, the
emphasis is on the written submissions, which are not regarded as succinct
heads of argument forming
the basis of argument to be presented, but the
argument itself together with all supporting material.  It is impossible for this
Court, sitting
en banc
with eleven members, to engage counsel in debate
as does the SCA.  Here much more detailed argument and more extensive
quotations
are expected in advance.  In consequence this Court can decide
C
and on occasion has decided
C
cases without hearing oral
argument.  Moreover and more to the point, the importance of the written
submissions in relation to the
oral argument is significantly greater than in
the SCA.
[45]      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 sub-rule (2) of CC rule 21, which provides
as
follows:
   Â
(2) In the event of oral and written argument, a fee for written
argument may in appropriate circumstances be allowed as a separate
item.
In such cases, however, the
taxing master will still have to be guided by the general precept that the fees
allowed for counsel must
constitute reasonable remuneration for work
necessarily and properly done for the attainment of justice.  Therefore,
although the
taxing master may in an appropriate case properly allow some or
all of counsel
’
s fees charged for preparation of and drafting written argument for
this Court, it would not be proper then also to allow a full
A
first-day fee
 for the hearing, i.e. the kind
of composite fee ordinarily allowed in the SCA and which has built into it
remuneration for preparatory
work.  That would condone cumulative debiting and
result in excessive fees being allowed.
[46]      The taxing master
would moreover have to keep a watchful eye on the reasonableness of not only
C
or even so much
C
the rate being charged by
counsel, but on the time spent.  The comments by Corbett CJ referred to above
apply with equal force in
this Court.  Allowing a rate per unit of time places
a premium on slow work to the detriment of the party who has to bear the cost
thereof.  Moreover, it does conduce to the production of unnecessarily lengthy
or detailed written submissions.  This would not
only be unfair to whoever has
to bear the cost but places an additional burden on all who have to study the
resultant verbosity.
[47]      In addition it should
be remembered that although a rate per unit of time worked can be a useful
measure of what would
be fair remuneration for work necessarily done and
although the need for written submissions in this Court may permit this method
more readily than in the SCA, the overall balance between the interests of the
parties should be maintained.  The rate may be reasonable
enough and the time
spent may be reasonable enough but in the ultimate assessment of the amount or
amounts to be allowed on a party
and party basis a reasonable balance must
still be struck.  Here the inherent anomaly of assessing party and party costs
should
be borne in mind.  One is not primarily determining what are proper fees
for counsel to charge their client for the work they did.Â
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?
[48]      An application of
these guidelines to the facts of this particular case may prove instructive.Â
In the first place
it should be decided whether this is a case that falls
within the special category of cases contemplated by CC rule 21(2), i.e. where
it is appropriate on taxation as between party and party to allow separately
for written argument.  Here the most significant factor
is that the date for
the hearing and the accompanying dates for the lodging of written argument were
changed during January 1999,
approximately a month after they had originally
been fixed.  By the time the postponement was sought
C
  and the more so by the time it
was granted
C
counsel for the appellants would have had to do the bulk of their
preparatory work.  It was not only reasonable but imperative for
them to
knuckle down to the task when they did in December 1998 and January 1999.Â
Then, when the case was postponed, it was reasonable
for them to renew their
preparation of the argument on appeal during April 1999.  In the circumstances
it is unnecessary to decide
whether, were it not for the hiatus brought about
by the belated postponement of the hearing, this would have been a case where
some
allowance for fees on preparation ought to have been made.  Clearly the
unusual nature and scope of the case coupled with the interruption
occasioned
by the rescheduling of the dates for hearing of oral argument brought it within
the special category of cases contemplated
by CC rule 21(2).
[49]      The next question to
be resolved is whether the rate at which the fees were charged is reasonable.Â
Senior counsel
booked his time at R750 per hour and R7 500 per day and the
juniors at R500 and R5 000.  On the face of it those are not excessive
charges
for the complexity, importance and sensitivity of the work involved in this case.Â
It really did call for exceptional skill
and scholarship, a great deal of
intensive intellectual effort and no little wisdom.  Having regard not only to
what is currently
being charged by advocates in private practice but by
consultants in general, the charges are reasonable for the leader of a
specialist
team engaged in work of this kind.  Similarly, the rate of fees
charged by the two juniors is reasonable.
[50]      The more difficult
question that then arises is whether the time spent on the preparatory and
drafting work by counsel
as reflected in their fee lists was reasonable.  The
taxing master calculated that senior counsel
’
s hours booked add up to 361 and
those of the juniors to 330 and 349 respectively but expressed no view as to
the reasonableness of
these hours and the respondents did not challenge them.Â
That is of little moment, for their estimates of the total number of hours
that
would have been reasonable to spend on the preparation of this case would
perforce have to be shots in the dark.  That is why
the ultimate test is not
whether the rate charged and/or the time spent is reasonable but whether the
resultant amount is fair to
award on a party and party basis.  Looking at the
rate, the time and the resultant product purely to assess their reasonableness,
it would be difficult to fault the taxing master.
[51]      But this is not an
attorney and client bill where the reasonableness of the fee is the predominant
criterion.  The
question is whether it would be fair to both sides to allow
recoupment of virtually the whole of very substantial attorney and client
charges in respect of counsel
’
s fees.  The taxing master did not consider this aspect
and the Court is therefore obliged to exercise its own judgment on this issue.Â
Having regard to the circumstances of the case as detailed above, it would be
fair to both sides to allow on a party and party basis
roughly two-thirds to
three-quarters of these fees.
[52]      It is important to
note two further points.  First, there is little if any evidence of duplication
of work.  Senior
counsel, who clocked many hours in the period before Christmas
1998 and early in January 1999, did not debit again until a week before
the
hearing while the juniors spent less time at the beginning and correspondingly
more time in April 1999.  The second is that
although the basis on which
counsel debited and on which their fees were taxed did not conform to the
practice endorsed by the SCA,
namely a composite first-day fee and lesser
refreshers, there was no cumulative debiting.  Each of the three advocates
booked the
first day of the hearing and each of the seven following days at the
same daily rate at which they booked their preparation and drafting
time, i.e.
at R7 500 and R5 000 respectively.  The main mischief identified in cases like
Van
Niekerk
is not present here.
[53]      That does not mean
that the taxing master was correct in dividing the total fees thus calculated
on the basis of equal
daily fees for each of the eight days of the hearing.  On
the contrary, such an allocation seems quite unnecessary and cannot be
endorsed.  A proper assessment of the quantum of counsel
’
s fees to be allowed has been
made, in which the duration of the hearing has been taken into account, and no
more need be done.Â
In any event, as pointed out above, the appeal did not run
for eight days but for five only.
[54]      In the result the
taxing master
’
s
allocatur
cannot be allowed to stand.  The matter will have to
go back to her for reconsideration of bills that distinguish properly between
the costs that are for the account of both respondents and those that are to be
borne by Dr Luyt alone.  Once such allocation has
been done, the taxing master
can proceed to taxation along the lines indicated in this judgment.  The
attorney
’
s fee for perusing the judgment must be allowed in the amount of R26
650 as an item in the bill on appeal and the total at which counsel
’
s fees for both the recusal
application and the appeal should be allowed as between party and party is R240
000 for the senior and
R160 000 for each of the juniors.
[55]      Were it not for the
circumstance that the joint and several liability of the Union and Dr Luyt does
not extend to both
sets of costs, no more would have to be done.  It is however
necessary to allocate counsel
’
s fees separately to the recusal application and the
appeal in order to determine the respective shares of those fees for which they
are respectively liable.  That task may prove wellnigh impossible so long after
the events and the taxing master may have to do
the best she can with the
available data.  In that event she would be acting prudently and fairly were
she to assume that, unless
the attorneys submit evidence and/or argument
persuading her otherwise, roughly one-fifth of the amount allowed for counsel
’
s fees is for Dr Luyt
’
s account.  This fraction is
arrived at  on the basis that the appeal took up more than half of the time at
the hearing and required
much more time in research and preparation than the
recusal.  In the circumstances it would be fair to both Dr Luyt and the Union
if four-fifths of the overall allowance on the party and party bill for counsel
’
s fees were notionally allocated
to the appeal and one-fifth to the recusal.
[56]      In the result the
application to review the taxation succeeds to the extent indicated in this
judgment.  The respondents
have succeeded in substantially reducing the total
amount of costs to be paid.  To that extent the appellants
’
opposition failed.  The fact
that the specific grounds relied on for setting aside the
allocatur
were
not upheld does not alter the substance of the material success achieved.  The
dominant (if not exclusive) purpose of reviewing
the bill was to decrease the
amount of the respondents
’
liability.  Had the contentions advanced but not accepted resulted in
the costs of the taxation being substantially more than they
would have been
had the correct argument been advanced, some special order may have been
necessary.  But that is not the case here
and the applicant is entitled to such
costs as are normally awarded to a party succeeding in a review of taxation.Â
Such costs are
however limited to the costs incurred in (i) drafting the notice
of review; (ii) perusing the stated case and the appellants
’
written contentions in response
thereto; and (iii) drafting the respondents
’
written contentions in relation
thereto.
Order
[57]      The following order
issues:
1.         The
taxing master's
allocatur
in this matter is set aside and the bill is
referred back to her to be taxed afresh in the light of this judgment.
2.         The
appellants are to pay the respondents' costs of the review of taxation, such
costs to be limited to the costs
incurred in (i) drafting the notice of review;
(ii) perusing the stated case and the appellants
’
written contentions in response
thereto; and (iii) drafting the respondents
’
written contentions in relation
thereto.
Langa
DP, Ackermann J, Madala J, Mokgoro J, O
’
Regan J, Sachs J, Yacoob J, Du
Plessis AJ and Skweyiya AJ concur in the judgment of Kriegler J.
[1]
              CC rule 21 provides as
follows:
            A
(1) Rules 9 and 10 of the Supreme Court of Appeal Rules regarding
taxation and attorneys' fees shall apply, with such modifications
as may be
necessary.
@
                SCA
rules 9 and 10 have however (with effect from 28 December 1998 in terms of
Government Notice R1523
of 27 November 1998) been substituted by new rules.Â
Rules 17 and 18 are the corresponding provisions that now deal with the
taxation
of bills of costs.  They are referred to more fully below.
[2]
              President of the Republic
of South Africa and Others v South African Rugby Football Union and OthersÂ
[1999] ZACC 9
;
1999 (4) SA 147
(CC);
1999 (7) BCLR 725
(CC) para 103.
[3]
              The judgment containing
the two awards is reported as
President of the Republic of South Africa and
Others v South African Rugby Football Union and Others
2000 (1) SA 1
(CC);
1999 (10) BCLR 1059
(CC).  The awards read as follows:
            A
3.  The costs of the application for recusal are to be paid by the
fourth respondent, such costs to include the costs of three counsel.
                                 4.Â
The costs of the appeal are to be paid by the second and fourth
respondents
jointly and severally and are to include the costs of three counsel.
@
[4]
              The registrar of the
Court is entrusted with the responsibility to tax bills of costs and when
performing
this function is styled the taxing master.
[5]
              The sub-rule reads as
follows:
            A
(3) Any party dissatisfied with the ruling of the taxing master as to
any item or part of an item which was objected to or disallowed
mero motu
by the taxing master, may within 20 days of the
allocatur
require the
taxing master to state a case for the decision of the court, which case shall
set out each item or part of an item, together
with the grounds of objection
advanced at the taxation, and shall embody any relevant findings of facts by
the taxing master.
@
[6]
              The relevant sub-rules of
rule 17 provide as follows:
            A
(4) The taxing master shall supply a copy of the stated case to each of
the parties, who may within 15 days of receipt of the copy
submit contentions
in writing thereon, including grounds of objection not advanced at the
taxation, in respect of any item or part
of an item which was objected to
before the taxing master or disallowed
mero motu
by the taxing master.
                                (5)
Thereafter the taxing master shall frame his or her report and
shall supply a
copy thereof to each of the parties and shall forthwith lay the case, together
with the contentions of the parties
thereon and his or her report, before the
Court.
                                (6)
After the taxing master has so laid his or her report before the
Court, he or
she shall, subject to the directions of the Chief Justice, notify the parties
or their respective attorneys of the date
of hearing.
@
                      Â
[7]
              See e.g.
Ferreira v
Levin NO and Others; Vryenhoek and Others v Powell NO and Others (No2)
[1996] ZACC 27
;
1996
(2) SA 621
(CC);
1996 (4) BCLR 441
(CC).
[8]
            Â
1998 (11) BCLR 1345
(CC)
para 23.
[9]
              See para 22.
[10]
          Â
[2000] ZACC 25
;
2001 (1) SA 912
(CC);
2001
(1) BCLR 36
(CC).
[11]
            Johannesburg Consolidated
Investment Co. v Johannesburg Town Council
1903 TS 111.
[12]
            Ocean Commodities Inc and
Others v Standard Bank of SA Ltd and Others
1984 (3) SA 15
(A) at 18F
C
G.
                See
also the discussion by Botha J in
Noel Lancaster Sands (Pty.) Ltd. v Theron
and Others
1975 (2) SA 280
(T) at 282D
C
283D for a discussion of the nature
and limits of the judicial function in this context.
[13]
          Â
1994 (1) SA 595
(A).
[14]
          Â
1997 (2) SA 756
(NmSC).
[15]
            Per Millin J in
Wellworths
Bazaars Ltd. v Chandlers Ltd. and Others
1947 (4) SA 453
(T) at 457
in
fin
.
[16]
          Â
1926 AD 467
at 488.
[17]
            President of the Republic
of South Africa and Others v South African Rugby Football Union and Others
[1998] ZACC 21
;
1999 (2) SA 14
(CC);
1999 (2) BCLR 175
(CC).
[18]
            Above n 13 at 601I
C
601J.
[19]
          Â
1972 (1) SA 686
(A) at 690C
C
D.
[20]
     A
Disturbing
@
,
A
hardly acceptable
@
,
A
farfetched in the extreme
@
and
A
excessive
@
.
[21]
            In para 26 above.
[22]
            Above para 7.
[23]
            Above n 13.
[24]
            Above n 19.
[25]
            Above n 12.
[26]
            At the request of the
respondents the hearing was subsequently rescheduled for hearing in May 1999
and the
dates for lodging submissions were changed.
[27]
            See para 26.
[28]
            There is no precedent in
South Africa for such an order and the extensive researches conducted in the
course
of the appeal produced no comparable instance of a head of state being
obliged to appear for cross-examination in a court of law.
[29]
            Above n 2.
[30]
            Above n 3.