About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Constitutional Court
SAFLII
>>
Databases
>>
South Africa: Constitutional Court
>>
2012
>>
[2012] ZACC 17
|
|
Camps Bay Ratepayers and Residents Association and Another v Harrison and Another (CCT 76/12) [2012] ZACC 17; 2012 (11) BCLR 1143 (CC) (20 September 2012)
Links to summary
CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 76/12
[2012] ZACC 17
In the matter between:
CAMPS BAY RATEPAYERS’ AND RESIDENTS’
ASSOCIATION
...............................................................................................
First
Applicant
P S BOOKSELLERS (PTY) LIMITED
......................................................
Second
Applicant
and
GERDA YVONNE ADA HARRISON
........................................................
First
Respondent
MUNICIPALITY OF THE CITY OF CAPE TOWN
..............................
Second Respondent
Decided on : 20 September 2012
JUDGMENT
THE COURT (Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J, Jafta J,
Khampepe J, Nkabinde J, Skweyiya J, Van der Westhuizen J,
Yacoob J
and Zondo J):
This
is a review of the taxation of counsel’s fees in
Camps Bay
Ratepayers’ and Residents’ Association and Another v
Harrison and Another
.
1
Senior counsel retained by one of the successful parties charged a
fee, inclusive of hourly preparation and appearance, of R453 150,
while junior counsel for the same items charged R263 500, both
including VAT. After objection by the losing party, this
Court’s
Taxing Master taxed these down to an inclusive fee of R240 000
for senior counsel and R160 000 for junior
counsel (plus VAT).
2
The losing party still considers this too high, and now seeks a
review of the Taxing Master’s award (
allocatur
).
The
complaint is that these fees are excessive, and that the Taxing
Master had no reason to depart from a guideline dating from
2006,
which is apparently applied in the Supreme Court of Appeal
(Guideline). According to the Guideline, counsel’s fees,
in
the absence of “acceptable special circumstances”,
should be taxed at no more than R75 000 for senior counsel
and
R50 000 for junior counsel, with allowance made for annual
inflation. The successful party in these proceedings disputes
the
applicability and force of the Guideline. In the view we take of the
matter, it is not necessary to decide whether the Guideline
should
apply in this Court. Rather, there is ample reason to endorse the
unsuccessful applicants’ complaint that the taxed
fees allowed
for counsel are excessive.
The
litigation has a long history. The Camps Bay Ratepayers’ and
Residents’ Association, one of the applicants challenging
the
taxation before us now, has lost most of its bouts. It started as an
urgent application in the High Court for an interdict
(which
succeeded),
3
followed by a review application (which failed).
4
Thereafter there was an unsuccessful appeal to the Supreme Court of
Appeal.
5
The unsuccessful appellants in that Court then mounted a
constitutional challenge in this Court. Although they secured a
hearing,
they were eventually refused leave to appeal, and their
application was dismissed with costs, including the costs of two
counsel.
6
The
principles applying to a taxation of a bill of costs in this Court
were established in
President of the Republic of South Africa and
Others v Gauteng Lions Rugby Union and Another
,
7
and were restated in slightly expanded form in
Hennie de Beer
Game Lodge CC v Waterbok Bosveld Plaas CC and Another
(
Hennie
de Beer
).
8
Their nub is that a successful party gets costs as an
indemnification for its expense in having been forced to litigate,
and
that a moderating balance must be struck to afford the innocent
party adequate indemnification within reasonable bounds. All
circumstances must be taken into account, and an overall balance
struck. The Court will not interfere with the Taxing Master’s
award simply because its views are different. It will interfere only
when the Taxing Master’s view is so materially different
as to
vitiate the ruling.
Hennie
de Beer
established a principle of particular relevance to this
dispute. It is that, in this Court, the previous litigation history
is
especially significant. It held that where counsel had already
traversed the main issues in three previous courts, and where the
arguments in this Court were largely “a rehearsal of issues
that had already been well trampled out” before previous
courts, counsel’s fees should be adjusted accordingly.
9
In that case, counsel charged 61 hours for an affidavit
resisting leave to appeal in this Court. The Taxing Master allowed
the hours, and granted a fee of R73 200. This Court intervened.
It disputed the hours allowed, and found instead that 20 hours
for the work put into the affidavit was more than adequate. The
total amount allowed was thus reduced from R73 200 to R24 000.
This
case seems to us analogous. Although the parties’ dispute was
in this Court dressed with a constitutional garnish,
for the
greatest part the issues had already been thoroughly trampled out
before the High Court, in the interdict and review
proceedings, and
in the Supreme Court of Appeal before the hearing before us. We can
find no warrant at all to impose, on the
losing party, counsel’s
fees of respectively R240 000 and R160 000, plus VAT.
The
Taxing Master, in a brief stated case, noted that he had taken into
account the complexity of the matter, which entailed what
he
considered important and complex constitutional questions, the
prevailing levels of counsel’s fees, and inflation. He
also
took into account the preceding traversal of the principal issues
and the need for fair compensation.
In
our view, none of these considerations were amiss, but in assessing
their total impact, the amount awarded was so disproportionate
to
what is fair and reasonable that the Taxing Master’s award is
vitiated and must be set aside.
In
our view, total reasonable remuneration for counsel’s work on
the appeal, inclusive of hourly preparation and the appearance
in
this Court, bearing in mind the two appearances in the High Court,
and one before the Supreme Court of Appeal, entitles counsel
to no
more than R180 000 and R120 000.
We
are aware that our judgment affects only what the winning party may
recover, in party and party costs, from the loser. The
winner
remains liable, as between attorney and client, for counsel’s
full fees, to the extent that these are reasonable.
It is the
concept of what it is reasonable for counsel to charge that this
judgment hopes to influence. We feel obliged to express
our disquiet
at how counsel’s fees have burgeoned in recent years. To say
that they have skyrocketed is no loose metaphor.
No matter the
complexity of the issues, we can find no justification, in a country
where disparities are gross and poverty is
rife, to countenance
appellate advocates charging hundreds of thousands of rands to argue
an appeal.
No
doubt skilled professional work deserves reasonable remuneration,
and no doubt many clients are willing to pay market rates
to secure
the best services. But in our country the legal profession owes a
duty of diffidence in charging fees that goes beyond
what the market
can bear. Many counsel who appear before us are accomplished and
hard-working. Many take cases pro bono, and
some in addition make
allowance for indigent clients in setting their fees. We recognise
this and value it. But those beneficent
practices should find a
place even where clients can pay, as here. It is with these
considerations in mind that we fix the fees
as we have.
10
The
following order is made:
1. The review succeeds.
2. The Taxing Master’s award (
allocatur
) in respect of
counsel’s fees in this Court is set aside.
3. In its stead, there is substituted the amounts of R180 000
for senior counsel and R120 000 for junior counsel, plus
VAT.
1
[2010]
ZACC 19
;
2011 (4) SA 42
(CC);
2011 (2) BCLR 121
(CC).
2
It
is not clear from the Taxing Master’s records, or from the
parties’ contentions, why counsel’s initial charges
did
not match, but what is clear is that the Taxing Master taxed both
fees down to an inclusive fee for the senior and junior,
of which
the latter was two-thirds of the former.
3
Camps
Bay Residents and Ratepayers Association and Others v Augoustides
and Others
2009 (6) SA 190
(WCC).
4
Camps
Bay Ratepayers' and Residents' Association and Another v Harrison
and Others
[2008] ZAWCHC 316
available at http://www.saflii.org/cgi-bin/disp.pl?file=za/cases/ZAWCHC/2008/316.html&query=camps%20bay%
20ratepayers,
accessed on 10 September 2012.
5
Camps
Bay Ratepayers’ and Residents’ Association v Harrison
[2010] 2 All SA 519
(SCA).
6
Camps
Bay Ratepayers’ and Residents’ Association and Another v
Harrison and Another
[2010] ZACC 19
; 2011 (4) SA 42 (CC);
2011 (2) BCLR 121
(CC).
7
[2001]
ZACC 5; 2002 (2) SA 64 (CC); 2002 (1) BCLR 1 (CC).
8
[2010]
ZACC 1
;
2010 (5) SA 124
(CC);
2010 (5) BCLR 451
(CC).
9
Id
at paras 10 and 13.
10
Considerable
debate on counsel’s fees is current. Compare Rogers “High
fees and questionable practices” (April 2012)
vol 25 (1)
Advocate
at 40-2. See, too, Gravett “‘I am not
overcompensated enough’: the moral compass of the American
lawyer”
(April 2012) vol 25 (1)
Advocate
at 43-8;
Rautenbach “Compromising counsel’s fees” (April
2012) vol 25 (1)
Advocate
at 48-9; Mlambo “The reform
of the costs regime in South Africa: Part 1” (April 2012) vol
25 (1)
Advocate
at 50-2; and Mlambo “The reform of the
costs regime in South Africa: Part 2” (August 2012) vol 25 (2)
Advocate
at 22-33. See also Wallis “Some thoughts on
the commercial side of practice” (April 2012) vol 25 (1)
Advocate
at 33-6.