LEGAL COSTS

Syllabus

The syllabus is compiled by

Practitioners with experience in
practice.
Training Guide The guide for 2024 has been revised
Version 004 Learning Resources No. 014
Publish Date: 01/01/2024 by Alet Meyer of Phatshoane

Confirmation Date: 01/11/2023 Henney Attorneys/Morne Scheepers

Cost Consultants and reviewed by
Advocate (Dr) James Clark, Clark
This training guide is intended as a supplementary tool
Chambers, and ACM Smit.
for purpose of the training at L.E.A.D’s Practical
Vocational Training School and Courses. ____________

The publishing of this training guide (“guide”) was made Notes on Content
possible through financial support of the Legal Practice The document records the views of
Council (via the Legal Practitioners’ Fidelity Fund). the drafters. There may be justifiable
variations in practice.
The Law Society of South Africa brings together the Black ____________
Lawyers Association, the National Association of
Democratic Lawyers and Independent attorneys, in The content may not be a correct

representing the Attorneys’ profession in South Africa. reflection of the law and/or practice
at the moment of reading due to
legislative changes after printing.

Lifelong learning towards a just society

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TABLE OF CONTENTS

A. AIM OF COURSE ................................................................... 9

B. SYLLABUS .......................................................................... 11

C. PRACTICE NOTES ............................................................... 12

1. INTRODUCTION .................................................................... 12
1.1 OVERVIEW .................................................................................... 15
1.1.1 THE CONCEPT OF “LEGAL COSTS” .............................................. 15
1.1.2 NON-LITIGIOUS MATTER .......................................................... 18
1.1.3 CIVIL LITIGIOUS MATTERS ...................................................... 18
1.2 BALANCING OF DUTIES .................................................................. 18
1.3 ECONOMICS OF AN ATTORNEY’S PRACTICE....................................... 19
1.4 EARLY ADVICE TO CLIENT AND ESTIMATE OF COSTS ......................... 19
1.4.1 MANDATE ............................................................................... 19
1.4.2 TAKING A DEPOSIT .................................................................. 20
1.4.3 ESTIMATE OF FEES AND DISBURSEMENTS .................................. 21
1.4.4 CONTINGENCY FEES................................................................. 21
1.4.5 RETAINERS ............................................................................. 25
1.4.6 AGREED FEES .......................................................................... 25
1.4.7 INTERIM AND FINAL ACCOUNTING ............................................. 25
1.4.8 COST RECOVERY ON BEHALF OF THE CLIENT .............................. 26
1.5 OFFICE ADMINISTRATION AND COSTS ............................................. 26

2. ETHICS IN RELATION TO COSTS ........................................... 28

2.1 OVERREACHING............................................................................. 28
2.2 UNDERCHARGING .......................................................................... 28
2.3 RECOVERY / ATTEMPTED RECOVERY OF COSTS FOR WORK NOT STRICTLY
NECESSARY............................................................................................ 28
2.4 MANUFACTURING COSTS ................................................................ 29
2.5 FEE SHARING ................................................................................ 29
2.6 KEEPING PROPER ACCOUNTING RECORDS ........................................ 29
2.7 FAILURE TO RENDER ACCOUNTS ..................................................... 29

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2.8 FAILURE TO PAY ACCOUNTS ............................................................ 30
2.9 COLLECTION COMMISSION ............................................................. 30
2.10 LEGAL AID MATTERS ................................................................... 31

3. NON-LITIGIOUS MATTERS .................................................... 32

3.1 CONCEPT OF ‘NON-LITIGIOUS MATTERS’ .......................................... 32
3.2 LEGAL PRACTICE COUNCIL AND FEE DISPUTE COMMITTEES ............... 33
3.3 CRITERIA TO BE TAKEN INTO ACCOUNT IN THE DETERMINATION OF FEES
33
3.4 DRAWING AN ACCOUNT FOR NON-LITIGIOUS WORK ......................... 34
3.5 ASSESSMENT OF COSTS ................................................................. 35
3.6 LIABILITY OF CLIENT / PERSON RESPONSIBLE FOR INCREASED AMOUNTS
RESULTING FROM AN ASSESSMENT AT HIS REQUEST ................................. 35

4. CIVIL LITIGIOUS MATTERS .................................................. 36

4.1 CONCEPT OF ‘CIVIL LITIGIOUS MATTERS’ ......................................... 36
4.2 THE ATTORNEY AND COSTS ............................................................ 36
4.3 RULES RELATING TO COST ORDERS IN CIVIL LITIGIOUS MATTERS ..... 37
4.4 DIFFERENT COST ORDERS .............................................................. 40
4.4.1 PARTY AND PARTY COSTS ......................................................... 40
4.4.2 ATTORNEY AND CLIENT COSTS ................................................. 41
4.4.3 ATTORNEY AND OWN CLIENT COSTS ......................................... 41
4.4.4 COSTS DE BONIS PROPRIIS ...................................................... 42
4.4.5 WASTED COSTS....................................................................... 42
4.4.6 RESERVED COSTS/COSTS TO STAND OVER ................................ 43
4.4.7 COSTS IN THE CAUSE .............................................................. 43
4.4.8 COSTS OF THE DAY .................................................................. 43
4.4.9 ALL COSTS/COSTS/TAXED COSTS.............................................. 43
4.4.10 NO ORDER MADE/NO ORDER AS TO COSTS ................................ 43
4.5 SPECIFIC COST ORDERS ................................................................. 44
4.5.1 HIGH COURT ........................................................................... 44
4.5.2 MAGISTRATES’ COURT ............................................................. 44
4.6 SETTLEMENT AGREEMENTS PAYMENTS INTO COURT AND TENDERS..... 45
4.6.1 OFFER TO PAY COSTS .............................................................. 45
4.7. THE COSTS OF TWO SETS OF ATTORNEYS ..................................... 46

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5. PRESCRIBED TARIFFS ........................................................... 47
5.1 SUPREME COURT OF APPEAL ........................................................... 47
5.2 HIGH COURT ................................................................................. 47
5.2.1 PARTY AND PARTY ................................................................... 47
5.2.2 ATTORNEY AND CLIENT COST AND ATTORNEY AND OWN CLIENT
COST AGAINST A THIRD PARTY ............................................................. 48
5.2.3 ATTORNEY AND OWN CLIENT .................................................... 49
5.3 MAGISTRATES’ COURT ................................................................... 50
5.3.1 PARTY AND PARTY ................................................................... 50
5.3.2 ATTORNEY AND CLIENT ............................................................ 51
5.3.3 ATTORNEY AND OWN CLIENT .................................................... 52
5.3.4 COLLECTIONS ......................................................................... 53
5.4 INDUSTRIAL COURT ....................................................................... 53

6. BILLS OF COST...................................................................... 54
6.1 THE IMPORTANCE OF DRAWING GOOD BILLS OF COST ...................... 54
6.2 PRE-REQUISITES FOR DRAWING A BILL ........................................... 54
6.2.1 LIABILITY FOR COSTS .............................................................. 54
6.2.2 ESTABLISHING THE NATURE OF THE BILL TO BE DRAWN ............. 55
6.2.3 DECIDING ON THE APPLICABLE SCALE AND TARIFF ..................... 55
6.2.4 A COMPLETE AND PROPERLY KEPT FILE ...................................... 56
6.2.5 SORTING FILE CONTENTS AND MAKING NOTES........................... 56
6.3 THE ANATOMY OF A BILL ................................................................ 57
6.3.1 FORMAL REQUIREMENTS .......................................................... 57
6.3.1.1 Date .................................................................................... 57
6.3.1.2 Item .................................................................................... 57
6.3.1.3 Number ............................................................................... 58
6.3.1.4 Description of Item ............................................................... 58
6.3.1.5 Fees .................................................................................... 58
6.3.1.6 Magistrates’ Court ................................................................. 58
6.3.1.7 In the High Court .................................................................. 58
6.3.1.8 Disbursements ..................................................................... 59
6.3.1.9 Witness Fees ........................................................................ 59
6.3.1.10 Postages .............................................................................. 60

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 6.3.1.11 Facsimiles and E-mails Sent ................................................... 60
6.3.1.12 Qualifying Fees of Expert Witnesses ........................................ 60
6.3.1.13 Taxed off ............................................................................. 60
6.3.2 ALLOCATUR............................................................................. 60
6.4 TERMINOLOGY IN A BILL ................................................................ 61
6.5 BREVITY AND ABBREVIATIONS ........................................................ 61
6.6 DELAY IN DRAWING BILLS .............................................................. 61
6.7 ADVANTAGES / DISADVANTAGES IN DRAWING OWN BILLS ................ 62
6.8 COST CONSULTANTS ...................................................................... 62
6.9 PRACTICAL HINTS .......................................................................... 62

7. SETTLING OF BILLS OF COST ................................................ 64

8. FORMAL REQUIREMENTS FOR TAXATION ............................. 65

8.1 NOTICE OF TAXATION .................................................................... 65
8.1.1 HIGH COURT RULE 70(4) DETERMINES: ..................................... 65
8.1.2 MAGISTRATES’ COURTS RULE 33(15) DETERMINES ..................... 66
8.1.3 APPELATE DIVISION RULE 10 PART G (5) DETERMINES ................ 67
8.2 CERTIFICATE ................................................................................. 67
8.3 CONSENT TO TAXATION IN ABSENCE ............................................... 68

9. TAXATION............................................................................. 68
9.1 APPLICABLE RULES ........................................................................ 68
9.2 TAXABILITY OF COSTS ................................................................... 69
9.2.1 IN TERMS OF MAGISTRATES’ COURT RULE 33(3): ....................... 69
9.2.2 INTERIM APPLICATIONS ........................................................... 70
9.3 DISCRETION AND FUNCTIONS OF TAXING MASTER ........................... 71
9.3.1 HIGH COURT RULE 70(5)(A) AND (B) DETERMINES...................... 71
9.4 UNWRITTEN RULES OF PRACTICE AND LOCAL REGISTRAR’S RULINGS . 72
9.5 PRACTICAL HINTS .......................................................................... 72
9.6 PENALTIES .................................................................................... 73
9.7 APPEARANCE ON TAXATION ............................................................ 74
9.8 INTEREST ON A TAXED ALLOCATUR ................................................. 74
9.9 CONSENT TO TAXATION ................................................................. 74

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10. REVIEW OF TAXATION ....................................................... 76
10.1 APPLICABLE RULES ..................................................................... 76
10.2 ITEMS SUBJECT TO REVIEW ......................................................... 76
10.3 PRINCIPLES ON WHICH THE COURT WILL INTERFERE ..................... 76

11. RECOVERY OF COSTS ......................................................... 77

11.1. SUMMARY .................................................................................. 77

12. LEGAL AID MATTERS .......................................................... 78

12.1 APPLICABLE RULES ..................................................................... 78
12.2 CIVIL LITIGIOUS MATTERS .......................................................... 78
12.3 SUMMARY .................................................................................. 79

D. REFERENCE SOURCES......................................................... 80

1. TEXTBOOKS .......................................................................... 80

2. CASE READING LIST ............................................................. 81

ATTORNEY’S MONTHLY BUDGET ................................................. 84

F. EXERCISE 1 | NON-LITIGIOUS BILL OF COST ....................... 85

G. EXERCISE 2 AND 3 |NON-LITIGIOUS BILL OF COST ........... 87

H. CONTINGENCY FEES AGREEMENT....................................... 88

I. AFFIDAVIT TO BE ANNEXED TO CONTINGENCY FEES

AGREEMENTS ............................................................................. 93

J. MAGISTRATES’ COURT TARIFF .............................................. 95

K. EXERCISE 4 | BILL OF COSTS: MAGISTRATES’ COURT ...... 117

L. EXAMPLE | MAGISTRATES’ COURT ALLOCATION ................. 119

M. FORM 26 NOTICE OF INTENTION TO TAX BILL OF COSTS 120

N. QUALIFYING FEES JUDGMENT.......................................... 121

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O. HIGH COURT TARIFF – 19 JUNE 2023 .............................. 126

P. EXERCISE 5 | BILL OF COSTS: HIGH COURT ..................... 131

Q. EXERCISE 6 | HIGH COURT ALLOCATION ......................... 133

R. EXAMPLE | ALLOCATUR IN THE HIGH COURT ................... 134

S. SUPREME COURT OF APPEAL TARIFF .................................. 135

T. TARIFF OF ALLOWANCES PAYABLE TO WITNESSES IN CIVIL

CASES....................................................................................... 139

U. COURT CASE | SALEMANE AND 2 OTHERS V SETSOTO LOCAL

MUNICIPAILTY CASE NO. 1356/2020....................................... 142

V. SOUTH AFRICAN LEGAL PRACTICE COUNCIL CODE OF

CONDUCT ................................................................................. 171

W. CONTINGENCY FEES ACT NO. 66 OF 1997 ........................ 227

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A. AIM OF COURSE

The aim of this course is to provide Candidates with:

• a broad overview of the principles and practical application of the Rules
and tariffs pertaining to the subject of legal costs, with the emphasis on
drafting and taxing of bills of costs in litigious and non-litigious matters.
• an understanding of the importance of “Costs” for the well-being of the
practice.

The purpose of the notes is to supplement the presentation of the instructors

and, hopefully, to be of use in practice.
Notes do not form a complete manual on the subject – the use of relevant
sources is still necessary.

Therefore, furthermore the following:

Within this training guide reference is made to various Court cases, textbooks,
articles (for example De Rebus) as well as other sources and the obligation
remains on the Candidate to stay abreast of changes within the law through
their own research in order to ascertain real time standing authorities. South
Africa is most definitely one of the countries since its incorporation as a full
democracy, for years to come to go through various legislative changes
occurring at a tremendous rate as the country embraces its newly found
democracy.

In this training guide Candidates will also find various developmental questions
on the subject matter within this guide. Answer to these questions will not
necessarily be available to Candidates as the questions are also intended to be
used by lecturers in developing the theoretical and especially the practical skills
of Candidates whilst lecturing to them.

Candidates must also take note of the fact that under this course
material calculations on an ongoing basis have to be done and
therefore the obligation is upon the Candidates when making use of
this training guide to research all the newest tariffs and percentages
mentioned in this training guide, in the newest promulgated
Government Gazettes.

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LEGAL COSTS ©LSSA 10
B. SYLLABUS

The purpose of the course is to provide a broad overview of the subject from a
practical point of view.
During training, instructors will only cover those aspects which Candidate Legal
Practitioners will encounter most often in practice. The remainder of the course
is self-study.

LEGAL COSTS ©LSSA 11

C. PRACTICE NOTES
1. INTRODUCTION

CANDIDATES SHOULD BE ABLE TO:

• Briefly explain the concept of “legal costs”.
• Distinguish between litigious and non-litigious matters.
• Explain the importance of the following:
o balancing of duties;
o the economics of an Attorney’s practice;
o early advice to client and estimate of costs.
• Explain the legal principles that are applicable to contingency fees and retainer
fees.
• List the various forms of record keeping that are important to ensure proper
office administration.

In South Africa there has been a growing concern over the overcharging
and unfair practices by professionals towards clients and steps have been
taken to prevent or prohibit such practices. The adopted Legal Practice Bill
(Act 28 of 2014) addresses issues pertaining to legal costs.

Note: The investigation and recommendations below have not been

published by the Rules Board as referred to below.

Section 35 states the following:

(1) Until the investigation contemplated in sub-section (4) has been
completed and the recommendations contained therein have been
implemented by the Minister, fees in respect of litigious and non-
litigious legal services rendered by Legal Practitioners, juristic
entities, law clinics or Legal Aid South Africa referred to in Section
34 must be in accordance with the tariffs made by the Rules Board
for Courts of Law established by Section 2 of the Rules Board for
Courts of Law Act, 1985 (Act No. 107 of 1985).
(2) The Rules Board for Courts of Law must, when determining the
tariffs as contemplated in sub-section (1), take into account—
(a) the importance, significance, complexity, and expertise of the
legal service required;
(b) the seniority and experience of the Legal Practitioner
concerned, as determined in this Act;

LEGAL COSTS ©LSSA 12

 (c) the volume of work required and time spent in respect of the
legal services rendered; and
(d) the financial implications of the matter at hand.
(3) Despite any other law to the contrary, nothing in this Section
precludes any user of litigious or non-litigious legal services, on his
or her own initiative, from agreeing with a Legal Practitioner in
writing, to pay fees for the services in question in excess of or below
any tariffs determined as contemplated in this Section.
(4) The South African Law Reform Commission must, within two years
after the commencement of Chapter 2 of this Act, investigate and
report back to the Minister with recommendations on the following:
(a) The manner in which to address the circumstances giving rise
to legal fees that are unattainable for most people;
(b) legislative and other interventions in order to improve access
to justice by the members of the public;
(c) the desirability of establishing a mechanism which will be
responsible for determining fees and tariffs payable to Legal
Practitioners;
(d) the composition of the mechanism contemplated in paragraph
(c) and the processes it should follow in determining fees or
tariffs;
(e) the desirability of giving users of legal services the option of
voluntarily agreeing to pay fees for legal services less or in
excess of any amount that may be set by the mechanism
contemplated in paragraph (c); and
(f) the obligation by a Legal Practitioner to conclude a mandatory
fee arrangement with a client when that client secures that
Legal Practitioner’s services.
(5) In conducting the investigation referred to in sub-section (4), the
South African Law Reform Commission must take the following into
consideration:
(a) Best international practices;
(b) the public interest;
(c) the interests of the legal profession; and
(d) the use of contingency fee agreements as provided for in the
Contingency Fees Act, 1997 (Act No. 66 of 1997).
(6) The Minister may by notice in the Gazette determine maximum
tariffs payable to Legal Practitioners who are instructed by any State
Department or Provincial or Local Government in any matter.
(7) When any Attorney or an Advocate referred to in Section 34(2)(b)
first receives instructions from a client for the rendering of litigious
LEGAL COSTS ©LSSA 13
 or non-litigious legal services, or as soon as practically possible
thereafter, that Attorney or Advocate must provide the client with a
cost estimate notice, in writing, specifying all particulars relating to
the envisaged costs of the legal services, including the following:
(a) The likely financial implications including fees, charges,
disbursements and other costs;
(b) the Attorney’s or Advocate’s hourly fee rate and an
explanation to the client of his or her right to negotiate the
fees payable to the Attorney or Advocate;
(c) an outline of the work to be done in respect of each stage of
the litigation process, where applicable;
(d) the likelihood of engaging an Advocate, as well as an
explanation of the different fees that can be charged by
different Advocates, depending on aspects such as seniority
or expertise; and
(e) if the matter involves litigation, the legal and financial
consequences of the client’s withdrawal from the litigation as
well as the costs recovery regime.
(8) Any Attorney or an Advocate referred to in Section 34(2)(b) must,
in addition to providing the client with a written cost estimate notice
as contemplated in sub-section (7), also verbally explain to the
client every aspect contained in that notice, as well as any other
relevant aspect relating to the costs of the legal services to be
rendered.
(9) A client must, in writing, agree to the envisaged legal services by
that Attorney or Advocate referred to in Section 34(2)(b) and the
incurring of the estimated costs as set out in the notice contemplated
in sub-section (7).
(10) Non-compliance by any Attorney or an Advocate referred to in
Section 34(2)(b) with the provisions of this Section constitutes
misconduct.
(11) If any Attorney or an Advocate referred to in Section 34(2)(b) does
not comply with the provisions of this Section, the client is not
required to pay any legal costs to that Attorney or Advocate until the
Council has reviewed the matter and made a determination
regarding amounts to be paid.
(12) The provisions of this Section do not preclude the use of contingency
fee agreements as provided for in the Contingency Fees Act, 1997
(Act No. 66 of 1997).

LEGAL COSTS ©LSSA 14

1.1 OVERVIEW
E A L Lewis (see “Textbooks”) states in his work, “Legal Ethics”, that legal
practice “....is not a suitable field in which to exercise a flair for the
amassing of wealth, despite what is sometimes alleged to the contrary. The
Attorney who acquires riches usually does so by investments and activities
extraneous to his profession. Usually, however, Legal Practitioners seldom
acquire great wealth”.

The Attorney must, unless acting pro doe or pro amico, charge a reasonable
fee for professional services. He undertakes to do work for a legitimate fee,
and is not entitled, for the duration of the professional relationship, to take
any advantage of the client’s status. During the course on legal costs the
broad outline of the principles applying to legal costs in South Africa will be
discussed, with the emphasis on drawing and taxing of bills of cost in
litigious matters.

Candidates are encouraged to extend their knowledge on the subject by

referring to the highly recommended list of publications included in this
training guide.

1.1.1 THE CONCEPT OF “LEGAL COSTS”

Legal costs are fees an Attorney or an Advocate charge for legal
work done on behalf of a client. This is the answer the general
public will give when asked the question what legal costs are. The
lay public’s perception is further that legal fees charged by
Attorneys and Advocates in South Africa are remarkably high and,
in most cases, excessive (Cilliers & Cilliers, 1997: ix).

Generally, legal costs are understood to be costs for legal work

done by a Legal Practitioner in the execution of the mandate,
payable in terms of a Court order or an agreement. In reality it is
far more complicated. For the Legal Practitioner costs could create
a minefield of problems if the principles involved are not understood
and correctly applied.

Civil litigious work and non-litigious work are treated separately

because of different Rules and principles applying to each. It is
important to make the distinction between the two types of costs
in order to understand legal costs and to apply the correct set of
Rules.

Costs in civil litigious work generally refer to the costs and expenses
for defending or initiating litigation.

On the other hand, non-litigious work, although difficult to define

due to the variety of work covered, usually mean the remuneration
LEGAL COSTS ©LSSA 15
 that a Legal Practitioner is entitled to for work done that is classified
as commercial work, drafting of contracts, agreements, transfer of
property etc.

Civil litigious versus non-litigious costs

The following table gives an overview of the distinction between
civil litigious and non-litigious costs. It further indicates the
concepts pertaining to guidelines, taxation, and assessment of
costs:

LEGAL COSTS ©LSSA 16

 LAW OF COSTS

NON-LITIGIOUS COSTS LITIGIOUS COSTS

STATEMENT OF ACCOUNT
BILL OF COSTS
ITEMISED NON-LITIGIOUS BILL

LEGAL PRACTICE COUNCIL SUITABLE STATUTE

PRESCRIBED TARIFF OF THE
SECTION 35 OF THE LEGAL
HIGH COURT
PRACTICE ACT / REGULATION 10
MAGISTRATES’ COURT
OF THE CODE OF CONDUCT
APPEAL COURT
RULES AND STATUTES

PARTY AND PARTY-SCALE

ATTORNEY AND CLIENT-SCALE
NO SCALES
ATTORNEY AND OWN CLIENT-
SCALE

ASSESSMENT BY THE FEE

TAXATION BY THE TAXING
DISPUTE RESOLUTION
MASTER
COMMITTEE
FACILITATED BY THE LEGAL
FACILITATED BY THE
PRACTICE COUNCIL OF EACH
APPLICABLE COURT
PROVINCE

LEGAL COSTS ©LSSA 17

 1.1.2 NON-LITIGIOUS MATTER
Costs for non-litigious work are governed by a variety of statutes,
Rules, and guidelines.

Where statutory tariffs are prescribed, costs are usually subject to

taxation by a state official. Such statutes are, for example:
• Deeds Registries Act No. 47 of 1937;
• Sectional Titles Act No. 95 of 1986;
• Companies Act No. 61 of 1973;
• Close Corporation Act No. 69 of 1984;
• Administration of Estates Act No. 66 of 1965;
• Insolvency Act No. 24 of 1936.

Currently non-litigious costs fall under the jurisdiction of the Legal

Practice Council. See the full discussion in this regard under “3.Non-
Litigious Matters”.

1.1.3 CIVIL LITIGIOUS MATTERS

The Rules of the various Courts prescribe tariffs of fees for civil
litigious work. Whether a Bill of Costs has been drawn on the scale
as between `Attorney and Client’, `Attorney and own Client’ or
between `Party and Party’, it is taxable by the Taxing Master of the
relevant Court.

As a rule, these bills of cost are not assessable by the Provincial

offices of the Legal Practice Council.

1.2 BALANCING OF DUTIES

A Legal Practitioner has on the one hand, a duty to his client, his profession,
the interests of justice, the public, his/her colleagues, and employees. On
the other hand, the Legal Practitioner has the right to charge for the
professional services rendered.

Although ethical and legal duties overlap to a large extent, ethical duties
can be the foundation in an action for damages. In Leite G F M v Leandy
and Partners 1989 (2) PH F18 (D) the Court held that the conduct of
the particular Attorney was both unethical and wrongful. It was further held
that the Attorney had an ethical as well as legal duty towards a non-client.
To avoid a conflict of interest, a proper knowledge of the ethics, the Rules
and Regulations governing legal costs is essential.

LEGAL COSTS ©LSSA 18

1.3 ECONOMICS OF AN ATTORNEY’S PRACTICE
In economic terms Attorneys’ fees should be determined by supply and
demand. Under these circumstances more competitive fees can stimulate
a more professional, and superior legal service.

The principles outlined by the Competition Commission strongly

recommend the Attorney’s freedom in determining his own fee structure.
There are, however, restrictions which can be found in several statutes and
Regulations which I will refer to later. An Attorney must always act on the
instructions and in the best interest of the client, without regard to himself,
and within the restrictions in which he has been placed.

An Attorney should annually prepare a budget.

See “E. ATTORNEY’S MONTHLY BUDGET”

1.4 EARLY ADVICE TO CLIENT AND ESTIMATE OF COSTS

It is important that the Attorney advises the client of the financial
implications and risks of costs. The only time that this may not be
considered necessary is when the client is experienced and sufficiently
sophisticated to know these matters himself.

Usually, little more than a general estimate of costs can be given in

advance. Even where a more accurate assessment can be given,
unexpected or unforeseen events may increase these costs, especially in
litigious matters and this should be explained to the Attorney’s client.

A client must always be kept up to date of anything unforeseen. An

Attorney should not incur substantial or abnormal expenses without the
prior approval of the client (Lewis; Legal Ethics 104 – 106 & 115). It is also
the Attorney’s duty to warn his client of the possibility that the Debtor or
Defendant may not be able to comply with a cost order, in which event the
client will be liable for costs.

In order to avoid any disputes, the following must be discussed with the
client:

1.4.1 MANDATE
The defined mandate, the extent thereof, as well as its termination
must be clearly demarcated. Since the implementation of Section
35(7) and (8) of the Legal Practice Act 28 of 2014 it is not only
advantageous to obtain a written mandate, but mandatory to enter
into a written mandate with your client. The possibility of a dispute
arising is limited, and cost implications are clarified. (See Law
Society of SWA v Steyn 1923 SWA 47 at 52).

LEGAL COSTS ©LSSA 19

 Particulars relating to fees and disbursements to be levied,
payments for interim and final accounts, as well as the client’s
liability (especially Attorney and own Client costs) should be as
clearly stipulated as possible. (See Malcolm Lyons & Munro v
ABRO and another 1991 (3) SA 464).

Take note that the costs of a legal suit belong to the client, and the
Attorney has, to a limited extend, a lien on his client’s claim for the
costs in obtaining it. In Kaiser & De Beer v Estate Liebenberg
1926 AD 91 at 96 the Court held that an Attorney has no lien on
his client’s claim for the costs occasioned by the legal suit.

NB: It is advisable and highly recommended to make certain that your fee agreement
with your client be in writing, whether incorporated in your mandate, application
for credit facilities or in a separate fee agreement. The agreement should also be
clear and complete enough to be used as a tariff on taxation/assessment.

NB: The most important requirements of a written agreement are

set out in case law. Reference is made to the case of Malcolm
Lyons & Munro v Abro and Another 1991 (3) SA 464.
• The fee agreement needs to be certain and not vague;
• The fee agreement and fee structure still need to use as its
basis the principles of the tariffs as set out in the Rules (Rule
70 – High Court);
• The client must confirm that the difference between Party
and Party costs and Attorney and own Client costs had been
explained to him;
• The Taxing Master can never be deprived of his powers and
duties to determine whether fees charged in terms of the
written agreement, are reasonable and specifically
authorised.

The well-drafted Fee agreement will also ensure that your client will
be able to recover his costs and receive a full indemnity, should an
Attorney and own Client cost order be obtained against an
opponent.

1.4.2 TAKING A DEPOSIT

The purpose of obtaining a deposit from a client, according to
Jacobs and Ehlers, is not only to indemnify the Attorney against
“loss occasioned by the costs of an action to the extent of the
advance”, but also to pay any interim disbursements, as well as
setting off against the deposit any sum due by the client in respect
LEGAL COSTS ©LSSA 20
 of interim accounts, whether in respect of the specific matter or for
other professional work done on his behalf.

The Attorney is entitled to retain this amount until such time as his
account is determined in a proper manner. The deposit may not
exceed a reasonable estimate of the Attorney’s charges.

1.4.3 ESTIMATE OF FEES AND DISBURSEMENTS

Although it is often impossible to give a correct estimate of the
costs in litigious matters, Legal Practitioners ought to give an
estimate to the client. If necessary, examples should be used i.e.,
costs of Counsel, advertisements, Sheriff’s fees, the costs of an
undefended divorce matter, defended matters, expert witnesses
etc.
See Section 35 of the Legal Practice Act No. 28 of 2014.

1.4.4 CONTINGENCY FEES

Attorneys were historically not allowed to enter into a contract with
a client on the basis that his remuneration will be a percentage of
the amount recovered on behalf of the client. This is known as a
pactum de quota litis, or champerty. It implies that the client
will only be liable for costs if the matter is successfully concluded.
It was seen as being contra bonos mores, unenforceable, and
regarded as unprofessional conduct. (See Incorporated Law
Society v Reid (1908) 25 SC 612; Price Waterhouse Coopers
Inc v National Potato Co-operation 2004(6) SA 66 SCA).

In terms of the Contingency Fees Act No. 66 of 1997 a Legal

Practitioner and his client may now agree:
• That the Legal Practitioner is not entitled to any fees unless
the client is successful.
• That, in the case of success, the Legal Practitioner is entitled
to his normal fee or up to 100% more than his normal fees.
(i.e., no more than double his regular fee) (Normal fees
being Attorney and Client fee that could be taxed in the
absence of a contingency fee agreement).
• The uplift fee or fee higher than the normal fee will not be
allowed to exceed 25% of the total amount awarded.
• Very important: The fee you are allowed to charge is the
lesser of the above scenarios.
Example: A claim is settled for R100 000 capital. The
Attorney’s regular fee in the absence of a contingency fee
agreement would have been R15 000. He may not charge
more than 100% of his regular fee = R30 000 OR 25% of the

LEGAL COSTS ©LSSA 21

 capital = R25 000. He must charge whichever is LESS. i.e.:
R25 000.
• Regarding common law contingency fee agreements, the
Court has put any doubt that these agreements are invalid
to rest in the matters of Ronald Bobroff & Partners Inc v
De La Guerre and South African Association of
Personal Injury Lawyers v Minister of Justice and
Constitutional Development (CCT 122/13, CCT
123/13) [2014] ZACC 2; 2014 (3) SA 134 (CC); 2014
(4) BCLR 430 (CC) (20 February 2014).
• The De La Guerre decision
The Applicant, De La Guerre, was a client of the first
Respondent, Ronald Bobroff & Partners (RBP). She had
instructed RBP to claim damages on her behalf from the third
Respondent, the Road Accident Fund (RAF), for injuries she
had sustained in a road accident. The RAF paid compensation
of approximately R2,8 million, and it was common cause that
RBP charged a fee of approximately R870 000, which was
30% of the capital and costs awarded to De La Guerre,
together with value added tax. The fee was determined in
accordance with a so-called common law contingency fees
agreement concluded between De La Guerre and RBP. De La
Guerre contended that this agreement was invalid as it
contravened the Contingency Fees Act. De La Guerre’s
contention was that a reasonable Attorney and Client fee for
the services rendered would have been approximately
R180 000. Even if doubled, as provided for in the Act, RBP
was notionally entitled to charge her approximately R354
000, she claimed.
The second Respondent, the Law Society of the Northern
Provinces, argued that common law contingency fees
agreements were permissible if concluded within the
recognised parameters, including that the Attorneys’
remuneration was fair. RBP did not file an answering affidavit
but requested the Court to stay the proceedings pending a
decision in the SAAPIL matter, which was heard on the same
day by the same full Bench. SAAPIL, inter alia, argued in
favour of common law contingency fees agreements.
The RAF supported De la Guerre’s view that a contingency
fees agreement between an Attorney and his client was
unlawful at common law.
The full Bench, per Fabricius J (with Mlambo JP and Kathree-
Setiloane J), held that the provisions of the Act clearly
prohibit any contingency fees agreement between an
Attorney and Client outside of the Act.
LEGAL COSTS ©LSSA 22
 The Court noted that, after the promulgation of the Act, the
Supreme Court of Appeal in PricewaterhouseCoopers Inc
and Others v National Potato Co-Operative Ltd 2004
(6) SA 66 (SCA) held that:
‘Any contingency fee agreement ... which is not covered by
the Act is therefore illegal.’
Fabricius J also referred to a number of decisions in the North
and South Gauteng High Courts that arrived at the same
conclusion. In the present matter, the Court held: ‘It is
abundantly clear from all authorities that the common law
prohibited contingency fees agreements between Attorneys
and their clients’ and added that the Act is ‘exhaustive’ on
the subject. Any contingency fees agreement not in
compliance with the Act is thus invalid.
Further, the Court held that RBP ‘must have been aware’ that
its agreement with De La Guerre was invalid and that
concluding such an agreement ‘could, in the proper context,
amount to unprofessional conduct’. The Court awarded a
punitive costs order against RBP on a scale as between
Attorney and own Client.
• The SAAPIL decision
The Court in the SAAPIL application dealt with two main
arguments advanced by SAAPIL, which were that the Act
did not override the common law and that Legal Practitioners
retained a common law right, outside of the Act, to enter into
contingency fees agreements, provided they observed their
ethical duties, alternatively that the Act is unconstitutional
on the grounds that it discriminates against Attorneys and
their clients in breach of Section 9 of the Constitution.
The application was opposed by the Respondent, the Minister
of Justice and Constitutional Development, and the RAF,
which was granted leave to intervene in the proceedings. The
Court dismissed the constitutional challenge to the Act with
costs, holding it was without merit.
The Court traced the history of the Act to the South African
Law Reform Commission report ‘Speculative and
Contingency Fees’ (Project 93) (1996), which had
recommended the legalisation on contingency fees
agreements, subject to the prescribed safeguards contained
in the Act. It noted that ‘the meaning, effect and
constitutionality of the Act have generated much controversy
and debate in the legal profession since its enactment.’
The full Bench, per Kathree-Setiloane J (with Mlambo JP and
Fabricius J), held that the law commission had highlighted
LEGAL COSTS ©LSSA 23
 the conflict of interests introduced by a contingency fees
agreement – the Legal Practitioner owed a responsibility to
the client and a duty to the Court, and the Legal Practitioner
enjoyed a financial interest in the outcome of the matter.
These conflicts must be managed very carefully, hence the
safeguards contained in the Act.
The Court noted that the effect of the Act is twofold:
o It permits contingency fees agreements.
o It makes all contingency fees agreements subject to
certain limitations and requirements in the Act.
In doing so, the Court held, ‘the Act leaves no room for lawful
contingency fees agreements which do not comply with
[these] limitations and requirements.
Further, the Court held that SAAPIL’s ‘proposition that
parliament has no right to put in place special statutory
protections to prevent abuse by Attorneys acting on
contingency’, was unsustainable.
The Court found that the limit prescribed by the Act on
Attorneys’ fees – to no more than 100% of the normal fees
(i.e., double the normal fee) or, in claims sounding in money,
a maximum of 25% of the total amount awarded – was both
permissible and justifiable.
Further, the constraints in the Act were required to protect
clients, and were described by the Court as, ‘plainly laudable
and important measures which outweigh the marginal
limitation of rights contended for by SAAPIL’.

Conclusion
Much-needed clarity on the permissibility of common law
contingency fees agreements has now been achieved and the
decisions in these two matters should settle once and for all the
difference of opinion that caused much uncertainty, and we now
have authority that all contingency fees agreements MUST comply
with the Act in order to be valid.

Section 5(2) of the Contingency Fees Act No. 66 of 1997 grants the
professional controlling body the jurisdiction to review any
agreement and set aside the provision of and fees claimable in
terms of a Contingency Fees Agreement if the controlling body is of
the opinion that the provision of fees are unreasonable. Therefore,
it appears that the Fee Dispute Resolution of the Legal Practice
Council will also have jurisdiction in this regard.

LEGAL COSTS ©LSSA 24

 See “H. CONTINGENCY FEES AGREEMENT”.

For a copy of the Contingency Fees Act, see attached herewith

“W. CONTINGENCY FEES ACT NO. 66 OF 1997”.

1.4.5 RETAINERS
An Attorney may accept a retainer. This ensures that he will not act
against the client, or that he is available to act on behalf of the
client, or that he is available for advice. A retainer may not be asked
for after the inception of the Attorney and client relationship. In
some provinces a retainer may not be accepted if it relates to
possible criminal prosecution in the future.

1.4.6 AGREED FEES

Even if a fee has been agreed on in advance, a correction of
excessive fees is possible. The Legal Practice Council OR the
Provincial offices (PO) of the Legal Practice Council (in the case of
non-litigious matters) or Taxing Masters (in the case of litigious
matters) are not precluded from determining the reasonableness of
an agreed fee. A Member/Attorney may be ordered to refund any
excess amount, after taxation or assessment.

1.4.7 INTERIM AND FINAL ACCOUNTING

The Attorney can account to the client on an interim basis by prior
agreement. In collection matters interim accounting may be done
without prior agreement. On request of a client, the Attorney must
account to him within a reasonable time.

In terms of certain prescribed Rules, final accounting must be done

in the following manner: “Every firm shall within a reasonable time
after the performance or earlier termination of any mandate
account to its client in writing. In the normal course of events, this
account should be the top last document in the file. Each account
shall contain:
• details of all amounts received by it in connection with the
matter concerned, appropriately explained;
• particulars of all disbursements and other payments made
by it in connection with the matter;
• fees and other charges charged to or raised against the client
and, where any fee represents an agreed fee, a statement
that such fee was agreed upon and the amount so agreed;
• the amount due to or by the client;
• and the firm shall retain a copy of each such account for not
less than five years.”
LEGAL COSTS ©LSSA 25
 1.4.8 COST RECOVERY ON BEHALF OF THE CLIENT
There seems to be a common misconception amongst Attorneys
and students that a taxed Bill of Cost is always paid to the Attorney
and that this is his fee. This is incorrect in most instances.

An Attorney bills his client for work done and the client pays him.
Such a bill can be rendered as agreed in the written mandate. At
conclusion of the matter and if the client is successful in his claim
for legal cost against his opponent, a Bill of Cost is drawn by the
Attorney and taxed by the Taxing Master (in litigious matters).
These taxed costs will be paid over to the client as a reimbursement
for the legal fees he has already paid his own Attorney.

1.5 OFFICE ADMINISTRATION AND COSTS

To run a successful legal practice, an effective administrative and a proper
accounting system is necessary. In terms of administration, clear and
effective records must be maintained. This includes the following records in
respect of each matter:
• correspondence;
• calls made and received, consultations, meetings, and other
attendances (i.e., Preparation, travelling time, distance travelled,
etc.);
• pleadings and notices;
• documents received from client or other parties;
• copies made;
• accounts received and disbursements made;
• instructions to Counsel, draft documents, briefs;
• facsimiles/e-mails sent or received;
• all other work done in respect of the relevant matter;
• accounts rendered to the client.

Proper file notes of consultations, meetings, telephone calls, and other

attendances must be kept regarding:
• date;
• duration;
• the nature of the attendance;
• a summary of the issues dealt with;
• telefax/e-mail receipts. An effective accounting system must enable
firms to comply with the accounting requirements as prescribed in

LEGAL COSTS ©LSSA 26

 the Legal Practice Act No. 28 of 2014, and the Rules of the Legal
Practice Council; and
• Usage of computers, and computer programs developed specifically
for legal practices, are highly recommended. Although the initial
expenses to install such a system could be substantial, it is worth
considering;
• IT facilitates:
o direct debiting of fees;
o regular updating of fee book;
o accurate detailed accounting to clients on a monthly basis;
o preparation of bills of costs for taxation;
o immediate access to online fee book;
o better control of the cash flow;
o better management of business debtors.

LEGAL COSTS ©LSSA 27

2. ETHICS IN RELATION TO COSTS

Explain the nature and impact of the following concepts:

 overreaching;
 undercharging;
 recovery/attempted recovery of costs for work not strictly necessary;
 manufacturing (fabricating) costs;
 fee sharing;
 failure to keep proper accounting records;
 failure to render accounts;
 failure to pay accounts;
 excessive recovery of collection commission;
 excessive recovery of fees in respect of legal aid matters.

2.1 OVERREACHING
Overcharging, and thus overreaching your client, or the debtor of a client,
or charging a fee which in the circumstances is unreasonably high can
amount to misconduct. Although the payer is entitled to taxation or an
assessment, the Legal Practitioner is not entitled to deliberately charging
excessive fees.

2.2 UNDERCHARGING
Undercharging, often called `undercutting’, is generally considered to be
touting; clients are unfairly attracted. A Legal Practitioner must charge
adequately and properly, in line with the prescribed Rules, tariffs and
guidelines, unless he is acting pro doe or pro amico.

2.3 RECOVERY / ATTEMPTED RECOVERY OF COSTS FOR WORK

NOT STRICTLY NECESSARY
It is mostly impossible, apart from being dangerous, to limit work done for
a client to the absolute necessary. However, fees charged for work done
outside the realm of the necessary should not be charged.

The Legal Practice Council do not condone an increase in fees because of

over-caution, negligence, or mistake on the part of the Legal Practitioner.
This will be considered when an account is assessed.

Examples:
 Counsel’s fees for appearances in any Court, tribunal, administrative
or like body before which the Attorney himself is entitled to appear.

LEGAL COSTS ©LSSA 28

 Other work performed by Counsel (excluding drafting of pleadings,
settling of papers, or giving advice on evidence in Superior Court
matters) on behalf of a client, without the express instruction of the
client to engage Counsel at his expense.
 Instruction of another Attorney to appear in Court, when the
instructing Attorney himself should appear, where after the
instructing Attorney attempts to, or recovers from his client more
than the costs he would have been entitled to himself.
 Tracing fees or costs incurred to conduct a company and / or close
corporation search when the information is in the client’s possession.

2.4 MANUFACTURING COSTS

Examples could be:
• Charging a fee for work which had not been done, but could be
recovered if it had been done; Charging a fee for work done, where
recoverable or charged for by his correspondent;
• Claiming payment of costs of demand or collection in a letter of
demand, where no such liability has been acknowledged by a debtor
in a contract or instrument of debt, judgment obtained therefore, or
authorised to do so by any law;
• Charging global amounts for disbursements without being able to
justify these amounts, or without actually having incurred such
expenses. This is regarded as theft by the Legal Practice Council.

2.5 FEE SHARING

A Legal Practitioner may not share professional fees with any person other
than another Legal Practitioner. Candidate Legal Practitioners and Counsels
are not regarded as Legal Practitioners for the purpose of this Rule.

The allowance to another Legal Practitioner may not (directly or indirectly)

exceed a third of fees charged. An unqualified person may not receive
remuneration from a Legal Practitioner for work done, where he is not
permitted by law to carry out such work.

2.6 KEEPING PROPER ACCOUNTING RECORDS

Failure to keep proper records for moneys received, held, or paid by a Legal
Practitioner on behalf of any person, or funds invested on behalf of a client,
is an offence.

2.7 FAILURE TO RENDER ACCOUNTS

Failure to render accounts to a client, correspondent, or debtor, on request,
may, under certain circumstances, be considered to be unprofessional.

LEGAL COSTS ©LSSA 29

2.8 FAILURE TO PAY ACCOUNTS
Failure by the Legal Practitioner to pay his accounts within a reasonable
period is not generally regarded to be unworthy or unprofessional conduct.
Failure to pay correspondents and experts, and Sheriffs’ fees will under
certain circumstances be considered to be unprofessional conduct.

2.9 COLLECTION COMMISSION

Where, by judgment or agreement, a debt is payable in instalments, a fee
of 10% may be levied for each collected instalment in redemption of
capital, costs, and interest. The maximum recoverable fee for each
instalment may not exceed R542.50 plus VAT thereon if levied in terms of
the Court Tariffs (Magistrates’ Courts Rules, Table A, Part 1(13) as
amended with effect on 19 June 2023, previous tariff prescribed the
amount of R499.00). No additional fee may be charged in connection with
the receipt or payment of any instalment.

Collection commission covers all attendances and work done in connection

with a receipt of a payment and accounting to the client in respect of a
payment as well as for letters for which the member is not entitled to
recover from the debtor on a Party and Party basis in terms of an existing
Court tariff.

Collection commission may only be recovered once for each payment,

regardless of whether more than one Attorney is involved. Historically the
non-litigious tariffs of the respective Law Societies prescribed Rules
pertaining to collections. On an Attorney and own Client basis collection
commission was to be charged at a maximum of R1 500.00 per payment
or 10% whichever is lesser. Currently the Legal Practice Council has no
formal guidelines in this regard.

Recent case law relevant to collection matters will influence the way
collection commission is charged:

BAYPORT SECURITISATION RF LTD AND LAW SOCIETY OF SOUTH

AFRICA v UNIVERSITY OF STELLENBOSCH LAW CLINIC & OTHERS
CASE 507/2020

The Applicants seek three declaratory orders:

 Firstly, an order declaring collection costs as defined in the National
Credit Act No. 34 of 2005 must be read to include legal fees incurred
to enforce the monetary obligation under the credit agreement,
regardless of whether such fees are charged before, during or after
litigation;

LEGAL COSTS ©LSSA 30

  Secondly that the limitations in terms of Section 103(5) that all
amounts (bar the capital) cannot exceed the balance of debt, must
apply at all times regardless of whether a judgment has been
granted;
 Thirdly, that legal fees may not be claimed until they are agreed
upon or taxed.

Hack, A.J. found that the Applicants are entitled to the relief sought. The
following order was made:
a) It is declared that collection costs as referred to in Section 101
(1)(g), as defined in Section 1 (Definitions), and as contemplated in
Section 103(5) of the National Credit Act No. 34 of 2005 includes all
legal fees incurred by the credit provided in order to enforce the
monetary obligations of the consumer under a credit agreement
charged before, during and after litigation;
b) It is declared that Section 103(5) of the National Credit Act No. 34
of 2005 applied for as long as the consumer remains in default of
his/her credit obligations, from the date of default to the date of
collection of the final payment owing in order to purge his default,
irrespective of whether judgment in respect of the default has been
granted or not during this period;
c) It is ordered that legal fees, including fees of Attorneys and
Advocates, in as much as they compromise part of collection costs
as contemplated in Section 101(1)(g) of the National Credit Act No.
34 of 2005, may not be claimed from a consumer or recovered by a
credit provider pursuant to a judgment to enforce the consumer’s
monetary obligations under a credit agreement, unless they are
agreed to by a consumer or they have been taxed.

THE RELEVANT RULES ARE:

Magistrates’ Courts Act – Par. 13 of Part I of Table A and Par. 3(b) of Part
I of Table B of Annexure 2.

2.10 LEGAL AID MATTERS

A Legal Practitioner who accepts instructions in a Legal Aid matter may not
receive, or attempt to receive, directly or indirectly, any fee from the client
or from any other source, in excess of the fees or disbursements approved
or allowed by the Legal Aid Board.

HINT:
A copy of the Legal Aid Guide with all Rules and guidelines can be bought for a nominal
amount from the Legal Aid Board.

LEGAL COSTS ©LSSA 31

3. NON-LITIGIOUS MATTERS

CANDIDATES SHOULD BE ABLE TO:

• Explain the approach towards non-litigious matters.

• Define the concept “determination”.
• Indicate what the effect is of Section 69(d) and (h) regarding costs in non-litigious
matters.
• Indicate the criteria that must be considered in the determination of fees.
• Indicate the principles that govern liability of a client for increased amounts,
resulting from an assessment at his request.

3.1 CONCEPT OF ‘NON-LITIGIOUS MATTERS’

Non-litigious work is best described at the hand of the definition of civil
litigious work hereunder. Every legal work that is not civil litigious, is
regarded as non-litigious for the purpose of this discussions of costs, and
subject to assessment by the Legal Practice Council, or taxation by a state
official as prescribed by that statute.

However, there is a grey area of work which also involves appearing in a

Court, but which work is not necessarily regarded as civil litigious. This
justifies further discussion. (Costs in non-litigious matters regulated by
specific statutes and prescribed tariffs are excluded.)
• Criminal work, Maintenance and Children’s Court matters are
regarded as non-litigious work.
• Work done in terms of Section 43 (for reinstatement) and Section
46(9) (for determination of dispute) of the old Labour Relations Act
No. 28 of 1956 is regarded as civil litigious and costs are subject to
taxation. An application in terms of Section 35 of the aforementioned
Act (establishment of a conciliation board) is non litigious and costs
are therefore subject to assessment.
• Costs for work done in arbitration proceedings are subject to
assessment, provided that no settlement agreement has been
reached, which has been made an order of Court, and that the
arbitrator has not made an order for costs in terms of Section 35(1)
of the Arbitration Act No. 42 of 1965.
• Charges for interrogations with prior permission of the Master in
terms of Section 73 of the Insolvency Act No. 24 of 1936 are taxable
by the Master of the High Court in accordance with Section 73(1) of
the Insolvency Amendment Act No. 78 of 1980, if the work was done
after 24 June 1980.

LEGAL COSTS ©LSSA 32

 • Enquiries in terms of Section 417 and 418 of the Companies Act No.
61 of 1973 are of a non-litigious nature and costs thereof are subject
to assessment.

3.2 LEGAL PRACTICE COUNCIL AND FEE DISPUTE COMMITTEES

Where no tariff is prescribed by law, the Provincial offices of the Legal
Practice Council must appoint a Fee Dispute Resolution Committee in terms
of the Legal Practice Act No. 28 of 2014, Code of Conduct Rules and
Regulations. See Section V hereunder at the end of the guide for the said
Code.

Such a Fee Dispute Resolution Committee will have jurisdiction to assess

the fees and reasonable disbursements payable to a Legal Practitioner in
respect of performance of work in his or her capacity as Legal Practitioner.

Such a Fee Dispute Resolution Committee shall not assess fees and
disbursements:
• In instances where a state official is empowered to do so; or
• Where the work concerned is already covered by statutory tariff, or
• Unless the party requesting the assessment pays the Fee Dispute
Resolution Committee in advance, a fee of 5% on the amount, which
is subject to assessment.

Therefore, it is clear that the committee will only have jurisdiction in

respect of non-litigious matters or if both parties agree and a fee of 5% is
paid. The committee will not have jurisdiction to assess any
dispute/account of an Attorney and Client nature if the matter is litigious.

Clause 10 of the Code of Conduct of the Legal Practice Council stipulates:

10.1 Any disputes about the quantum or rate of fees charged by a Legal
Practitioner or about the work done by and value received from a
Legal Practitioner in relation to non-litigious matters shall be subject
to a fees enquiry to be conducted by an authorised sub-structure of
the Council;
10.2 An onus shall rest on the Legal Practitioner to justify the
reasonableness on fees charged and that the work charged for was
done and reasonably necessary to be done or was done at the
request of the client or the instructing Attorney, as the case may be.

3.3 CRITERIA TO BE TAKEN INTO ACCOUNT IN THE

DETERMINATION OF FEES

LEGAL COSTS ©LSSA 33

 The following criteria will be taken into account when determining
reasonable and adequate remuneration for services rendered by the
Attorney:
• the amount and importance of the work;
• the complexity of the matter or the difficulty or novelty of the work
or questions raised;
• the skill, labour, specialised knowledge, and responsibility involved
on the part of the member;
• the number and importance of the documents prepared or perused,
without necessarily having regard to the length;
• the place where and circumstances in which the services or any part
thereof were rendered;
• the time expended by the member;
• where money or property is involved, its amount or value;
• the importance of the matter to the client;
• the quality of the work done;
• the experience or seniority of the member;
• any tariff or fees approved by the Legal Practice Council for the sole
purpose of serving as a guide to members;
• any tariff or fees prescribed by the Legal Practice Council in
accordance with the Legal Practice Act No. 28 of 2014; and
• if the fees have been incurred or increased through over caution,
negligence, or mistake on the part of the member.

Where a strict adherence to the above provisions would be inequitable, the

applicable Council or Committee is entitled to deviate from any of the
provisions. This is only permissible in extraordinary or exceptional
circumstances.

3.4 DRAWING AN ACCOUNT FOR NON-LITIGIOUS WORK

These accounts are referred to as a statement of account and need not
resemble a Bill of Costs. It should specify the time spent, the rate charged
per hour (where applicable), the number of folios or pages, and details of
work performed for each item of the account.

Fees and disbursements should be separated. Disbursements should not

be charged by way of a global amount but should rather be itemised. Each
Provincial office of the Legal Practice Council has different requirements for
accounts submitted for assessment; this may necessitate amendment of
the account which was rendered to the client.

LEGAL COSTS ©LSSA 34

3.5 ASSESSMENT OF COSTS
Each Provincial office of the Legal Practice Council has guidelines in respect
of the manner of assessment of costs. An account of a Legal Practitioner is
referred to the Fee Dispute Resolution Committee, by a Legal Practitioner
of the client in terms of the provisions on the Code of Conduct of the Legal
Practice Council. Both parties will be invited to attend to assessment. The
Committee must determine whether the Committee has jurisdiction to
assess the account and if proper notice was given to the parties involved.

The Committee will proceed to determine whether the fees charged by the
Legal Practitioner were reasonable; that the work charged for was
performed and was reasonably necessary to do; or was done on request of
the client. The parties have the right to raise objections to items specified
or to respond to objections raised. The Committee will complete an
allocation Form and the parties will be furnished with a copy.

3.6 LIABILITY OF CLIENT / PERSON RESPONSIBLE FOR

INCREASED AMOUNTS RESULTING FROM AN ASSESSMENT AT
HIS REQUEST
Legal Practitioners will be entitled to increase their own fees, if, on taxation
or assessment requested by a client, a higher fee becomes payable,
provided that:
• written notice is given to the client by the Attorney that he reserves
the right to claim the higher fee, if the account is increased;
• notice is given when the Attorney first renders the account to the
client, or before submitting the account for assessment or taxation;
• the statement of account presented to the assessment committee, if
required, be redrawn by the Attorney to reflect the total fees subject
to assessment.

The following is an example of such a notice to a client:

“On request a taxed Bill of Costs, or where appropriate, an account for
assessment by the Legal Practice Council will be furnished in respect of any
item appearing in this account. In such event we reserve the right to claim
the amount of the bill as taxed, or of the account as assessed.”

LEGAL COSTS ©LSSA 35

4. CIVIL LITIGIOUS MATTERS

CANDIDATES SHOULD BE ABLE TO:

• Explain the concept “Attorney and Client” costs.

• Indicate the types of costs orders that a Magistrate may grant in terms of the
Magistrates’ Courts Rules.
• Distinguish between:
o Party and Party costs;
o Attorney and Client costs;
o Attorney and own Client costs;
o costs de bonis propriis;
o wasted costs;
o reserved costs;
o costs in the cause;
o costs of the day;
o costs;
o no order as to costs.
• Indicate the circumstance in which a party must apply for a “specific costs order” in:
o The High Court;
o The Magistrates’ Court.
• Indicate the instances in which an offer to pay costs will be taxable, as if it had
been awarded by the Court.

4.1 CONCEPT OF ‘CIVIL LITIGIOUS MATTERS’

Work is generally considered to be of a civil litigious nature where a
summons or application is issued, and pleadings and notices are exchanged
between parties.

However, a summons or application need not be issued. A dispute that will

eventually require a summons or application to be issued, if not resolved,
is also civil litigious, and costs are subject to taxation by the Taxing Master.

4.2 THE ATTORNEY AND COSTS

The client is always liable to his Attorney for costs incurred for work done
on his behalf by the Attorney. These costs are known as Attorney and Client
costs. To indemnify a party for expenses incurred from having been
compelled to initiate, or defend litigation, costs are usually awarded to the

LEGAL COSTS ©LSSA 36

 successful litigant. These costs are usually Party and Party costs. This is
seldom a complete indemnity. The successful party will be out of pocket
for the difference in the amount payable to his Attorney (Attorney and
Client costs), and the amount recovered from the unsuccessful party (Party
and Party costs), if any and client should be advised of this.

A proper knowledge of the Rules and tariffs applicable to costs and taxation
is essential in order to:
• properly protect a client’s rights;
• to prepare him for the risks in litigating;
• to assist him effectively to obtain beneficial cost orders or
settlements;
• to recover costs from an unsuccessful litigant;
• to draw proper bills of costs.

Because it is the Attorney’s duty to his client to perform his professional

work with such a degree of skill, care, and attention, and of such a quality
or standard as may reasonably be expected of him as an Attorney, it is
imperative that particular attention is paid to the often-neglected issue of
costs.

HINT:
The difference between Attorney and Client costs, Attorney and own Client costs and
Party and Party costs will to a great extent be determined on the quality of the Bill of
Costs. Proper record keeping and good skills in the drafting of bills of costs are essential.

4.3 RULES RELATING TO COST ORDERS IN CIVIL LITIGIOUS

MATTERS
The basic rule, which overrides all other relevant rules, is that the Court
has a discretion in awarding costs. It must be exercised judicially and not
arbitrarily, after considering the facts of each case. This is a wide discretion,
but not an unfettered discretion.

Regarding the binding effect of comparable precedents, the Appeal Court

declared in Fripp v Gibbon & Co 1913 AD 354 on 364:

“[I]n my view it is undesirable to lay down any hard and fast Rules for the
guidance of magistrates, to which they will be expected to conform in the
absence of exceptional circumstances. Where the law has given a
magistrate absolute discretion free and unfettered by any Rules, it is not
for the Court to lay down Rules which, while purporting to guide him, will
only have the effect of fettering his discretion.”

LEGAL COSTS ©LSSA 37

 The general Rules, which must guide the Court when considering cost
orders, are:
• The successful party is entitled to his costs. This Rule is not to be
departed from, except with good reasons.
• Where a successful application is made for the grant of an
indulgence, costs do not follow the event. This will, for example, be
applicable to applications for postponement, condonation, and
amendment.
• In determining who the successful party is, the Court should not only
look at the form, but also the substance of the judgment.

The Court must attempt to establish which of the parties had been
substantially successful; this is necessary in the instances of:
• inflated claims;
• slight or partial success;
• severability of issues;
• main and alternative claims, or defences;
• counterclaims;
• undecided issues; and
• where costs have not been argued.

The Court can, for good reason, deprive a party of his costs, in whole or in
part.

This Rule can be applied in the instance of:

• unconscionable / excessive demands;
• taking unnecessary steps, or following wrong procedure;
• misconduct by a party or Legal Practitioner;
• vexatious proceedings;
• negligence by successful party;
• moral considerations;
• technical success only;
• specific types of proceedings.

The Court can, for good reason, order the successful party to pay all, or
part of the costs of the other party. This will apply where:
• misleading conduct or statements cause the costs of the
proceedings; or
• the Court disapproves of the conduct of the successful party.
LEGAL COSTS ©LSSA 38
 The Court can, in special circumstances, order the one party to pay the
costs of the opponent on an Attorney and Client basis.

These circumstances include:

• dishonesty;
• fraud;
• reckless, malicious, frivolous or vexatious motives; and
• grave misconduct in the case, or the transaction under inquiry.

In the matter of MKHATSHWA AND OTHERS V MAKHATSHWA AND

OTHERCCT220/20, the Constitutional Court refused the application for
leave to appeal with costs to be paid by the applicants to the first and
second respondents on an attorney and client scale. The Court remarked
that´”After all, when a party “lowers its ethical and professional
standards in pursuit of a cause”, it is natural that punitive costs must
follow. 26”.

The Court may, in exceptional circumstances, order the one party to pay the costs
of the opponent on an Attorney and own Client basis.
From case law it is clear that this order may be granted by the High Court
in exceptional circumstances only.

A Magistrate may grant a higher fee for Counsel in terms of the Magistrates’
Court tariff, but this higher fee is limited to only those items as specifically
mentioned in the tariff

See “J. MAGISTRATES’ COURT TARIFF”

See:
1. Aircraft Competitions Centre (Pty) Ltd v Rossouw 2004 (1) SA 123 W;
2. Hyperchemicals International v Maybaker Agrichem 1992(1) SA 89 (W);
3. Mngoma v Mayor of Katlehong City Council 1992 (3) SA 226 (W);
4. Cambridge Plan AG v Cambridge Diet (Pty) Ltd & Others 1990 (2) SA 574
(I) Motor Industry Fund;
5. Administrators (Pty) Ltd v Janit 1994 (3) SA 56 (W);
6. Herbstein & Van Winsen Civil Practice in the High Court of South Africa
5th Edition 2009 at 953.

The Court may order an unsuccessful party, suing or being sued in a

representative capacity, to pay costs de bonis propriis. This applies

LEGAL COSTS ©LSSA 39

 where there is a material departure from the responsibility of office, such
as mala fides, negligence, or unreasonable conduct of a trustee.

The Magistrates’ Court, being a creature of statute, is bound by the

Magistrates’ Courts Act No. 48 of 1965, and the Rules. Section 48(d) and
Rule 33(1) and (2) prescribe the orders such a Court may grant in respect
of costs. Rule 33(8) and (10-13) make provision for specific circumstances
under which the Court may or shall deviate from the general Rules above.

Section 48(d) provides:

“The Court may ... grant-
(d) such judgment as to costs (including costs as between Attorney and
Client) as may be just;”

This sub-section was amended by Section 3 of Act No. 48 of 1965, by the

insertion of the part between the brackets. This followed the decision in
Hoosen v Joubert 1964 (4) SA 291(T), in which it was held that a
Magistrates’ Court has no jurisdiction to award Attorney and Client costs.
Thereafter the insertion of the part between the brackets was added.

Rule 33(8) provides:

“The Court may on request made...in any contested action or proceeding
in which-
(a) is involved any difficult question of law or of fact; or
(b) the Plaintiff makes two or more claims which are not alternative
claims; or
(c) the claim or defence is frivolous or vexatious, award costs on any
scale higher than that on which the costs of the action would
otherwise be taxable.”

This higher scale refers to scale B, C or D as provided for in the tariffs.

The Magistrates’ Courts are, therefore, limited to award costs to be paid on

the Party and Party scale, or costs as between Attorney and Client, or
alternatively, on a higher scale than that on which the costs would
otherwise be taxable. It is not authorised to award costs to be paid as
between Attorney and own Client. In practice, the Taxing Master will
normally apply a discretionary surcharge (percentage), to the tariff.

4.4 DIFFERENT COST ORDERS

4.4.1 PARTY AND PARTY COSTS
They are usually costs which have been incurred by a party to legal
proceedings, and which the other party is ordered to pay. They do
not include all costs, but only costs that have been necessarily and
LEGAL COSTS ©LSSA 40
 properly incurred, for the attainment of justice, or for defending of
that party’s rights.

Example:
When a trial date is allocated, and the Attorney telephones the
client to inform him about the trial date it will be regarded as Party
and Party costs. When the Attorney writes a letter to confirm in
writing the telephone conversation it will be seen as a duplication
and will probably be seen as Attorney and Client costs. When the
client phones three weeks later to again confirm the trial date it will
definitely be Attorney and Client costs.

4.4.2 ATTORNEY AND CLIENT COSTS

These are the fees an Attorney is entitled to recover from the client
for professional services rendered, and for disbursements made on
behalf of the client.

In a broader sense they include all costs the Attorney is entitled to

recover from the client.

In the narrow sense they include the costs, charges and expenses
between Attorney and Client, which ordinarily the client cannot
recover from the other party.

Example:
When the client:
• phones every second day to “discuss” his case;
• unopposed applications;
• copies of letters to keep;
• costs abortively incurred in endeavours to find available
Counsel;
• pre-litigation costs.

4.4.3 ATTORNEY AND OWN CLIENT COSTS

These are defined as the remuneration that an Attorney is entitled
to, in terms of an agreement or mandate with the client. The
Attorney is remunerated according to a predetermined fee, e.g., an
hourly rate to which the client has given his informed consent. (See
Cambridge Plan AG v Cambridge Diet (Pty) Ltd and Other
1990 (2) SA 574 (T)).

See the discussion under “5.3.3 Attorney and own Client”

hereunder about the Magistrates’ Courts’ powers in this regard.

LEGAL COSTS ©LSSA 41

HINT:
It is advisable to make certain that your fee agreement with your client is in writing
whether incorporated in your mandate, application for credit facilities or in a separate
fee agreement.
The agreement should also be clear and complete enough to be used as a tariff on
taxation.
See discussion under “1.4.1 Mandate”.

See Aircraft Completions Centre (Pty) (Ltd) v Rossouw &

Other [2003] 3 All SA 617 (W) in “CASE READING LIST”.

4.4.4 COSTS DE BONIS PROPRIIS

The Court will in appropriate circumstances award costs de bonis
propriis against a person acting in a representative capacity, e.g.,
an Attorney, Counsel, Trustee, or Liquidator. This is a penalty for
improper conduct, and the representing person must pay such
costs out of his own pocket. Such an order can be made as between
Party and Party, Attorney and Client or Attorney and own Client
depending on the Court and the circumstances.

See Webb v Botha in “CASE READING LIST”.

4.4.5 WASTED COSTS

Costs are ‘wasted’ when the services that occasioned them, are of
no more use to the parties in the action.

They have also been defined as “additional costs resulting from a

postponement caused by an amendment, if these costs would not
otherwise have been incurred for services rendered, which services
or costs previously incurred have become useless by reason of the
amendment.”

Example:
On a postponement fee in respect of attending the pre-trial, will be
a good example of costs that are not wasted as the usefulness
hereof is not lost. The questions/answers and admissions made by
the parties are recorded in the pre-trial minute and will still be
useful at the next trial (even if another pre-trial is conducted).

It only constitutes everything you will have to re-do in order to

again bring the matter to trial. The costs in respect of the Notice of
Set-Down will be wasted as a new Notice of Set-Down will have to
be drafted.
LEGAL COSTS ©LSSA 42
 4.4.6 RESERVED COSTS/COSTS TO STAND OVER
The Court usually reserves costs for argument and determination
by a trial Court when the liability for costs of an interim application
can be more effectively determined by the trial Court. This allows
the trial Court a greater degree of discretion when dealing with
costs. Costs may also be reserved under circumstances where it
would be uneconomical or impractical at a given time to waste
Court time with an argument regarding costs if this argument can
be held over to be argued at a later stage.

Practical note:
In the High Court, the Legal Practitioner ought to address the issue
of reserved costs at the finalisation of the case. If these costs are
not “unreserved”, the successful party will not be able to recover
these costs from the opponent. A Taxing Master has no discretion
in allowing costs against a third party in absence of a Court Order.

It is not necessary in the Magistrates’ Court to argue these costs

as Rule 33(2) provides that such costs will be costs in the action
(see also 4.4.10).

4.4.7 COSTS IN THE CAUSE

This is an order usually granted in interim proceedings.

The party liable for costs in the main action will then also be liable
for costs of an interim application, for example costs of an
Application for Appointment of Curator bonis or Curator ad
litem.

4.4.8 COSTS OF THE DAY

These are additional costs caused by a postponement of
proceedings, and consequent waste of the day. The costs are
limited to the cost of the day only i.e., Attendance at Court by the
Attorney and the day fee of Counsel.

4.4.9 ALL COSTS/COSTS/TAXED COSTS

‘Costs’ means Party and Party costs, unless otherwise specified.
See Whelan v Whelan 1990(2) SA 29 (E).

4.4.10 NO ORDER MADE/NO ORDER AS TO COSTS

Where the Court specifically says ‘no order as to costs’, each party
will bear its own costs. Where the High Court fails to deal with the
costs issue at all, it is not finalised, and any one of the parties can

LEGAL COSTS ©LSSA 43

 approach the Court for an order as to costs. Otherwise, each party
will bear its own costs.

Where the Magistrate’s Court, however, fails to deal with the cost
issue at all, costs of any application, order, or issue raised by the
pleadings (i.e., the Court order/settlement made an order is silent
about the issue of costs) will be costs in the action - Rule 33(2).

Note the difference: If the Court orders “no order as to costs”,

each party will bear its own costs.

4.5 SPECIFIC COST ORDERS

There are instances where the Court can, usually only on application by
one of the parties, allow certain costs. Unless a Court order or an
agreement regarding such costs exists, the Taxing Master may not allow
such costs on taxation.

4.5.1 HIGH COURT

• Qualifying fees/preparation of expert witnesses;
(Donaldson v Seaward 1958 (2) SA 198 (O) at 200B);
and
• Fees of more than one Counsel (Rule 69(1));
• Fees of Counsel in excess of the fees prescribed by the
Magistrates’ Courts Tariffs for Advocates, where the value of
the claim falls within the jurisdiction of the Magistrates’ Court
(Rule 69(3)).

4.5.2 MAGISTRATES’ COURT

• Taxability of cost orders relating to interim proceedings
before conclusion of the main action (Rule 33(3));
• Costs on a higher scale than the prescribed Party and Party
tariffs, in actions or applications (Rule 33(8));
• Travelling time and expenses, and subsistence expenses of
an Attorney other than a local Attorney (Rule 33(9));
• Counsel’s fees in cases where the amount is less than R7
000.00;
• Refresher fee in postponed or part heard trials (Item 23 of
Part III, Table A, Annexure 2);
• Preparation for trial in opposed applications (Item 4 of Part IV,
Table A, Annexure 2);
• Preparation for trial and refresher fees in opposed
applications, equal to the same fees for defended actions

LEGAL COSTS ©LSSA 44

 (Note after item 5 of Part IV, Table A, Annexure 2);
• Counsel’s fees on applications (Note to item 21 of Part IV,
Table A, Annexure 2);
• Taking instructions to brief Counsel and drawing brief for
Counsel on applications or exceptions (Item 16 & 18 of Part
IV, Table A, Annexure 2);
• Travelling allowance (travelling time and expenses) for
Counsel where Trial Court is situated more than 30km from
nearest location of seat of Local or Provincial Division of the
High Court (Item 23 of Part IV, Table A, Annexure 2);
• Counsel’s fees at a rate higher than the prescribed fees, for
drawing of pleadings, consultations, trial- and refresher fees
(Note (b) after item 26, Part IV, Table A, Annexure 2);
• Travelling time and expenses, and subsistence expenses of
Counsel (Rule 33(9) read with Note (c) after item 26, Part
IV, Table A, Annexure 2);
• Qualifying fees of expert witnesses. (See Community
Development Board v Katija Suliman Lockhat Trust
1973 (4) SA 226 (N)).

4.6 SETTLEMENT AGREEMENTS PAYMENTS INTO COURT AND

TENDERS
Liability for costs does not only arise from cost orders; it could also arise
from settlement agreements or tenders and payments into Court.

When contemplating settlement offers, tenders or payments into Court, the

Rules relating to costs must be carefully considered.

Keep the following in mind:

4.6.1 OFFER TO PAY COSTS

An offer to pay costs will be taxable, as if it had been awarded by
the Court, in the following instances:
• if contained in a settlement offer, and accepted in terms of High
Court Rule 34; or
• if contained in a settlement agreement, and recorded in
terms of Magistrates’ Courts Rule 27(6);
• where a party, in terms of a Notice of Withdrawal, offers to
pay the costs of the other party in terms of Magistrates’
Courts Rule 27(3), or High Court Rule 41(1)(a);
• where a party offers to pay the other party’s costs in terms
of Magistrates’ Courts Rule 33(22).
LEGAL COSTS ©LSSA 45
 Unless the offer to pay costs expressly provides for payment of
specific costs, (e.g., expert witness qualifying fees), the Taxing
Master may not tax such costs.

There is always a risk (in respect of costs) in rejecting a reasonable

offer and proceeding to trial. The offer needs to be carefully
considered, as the offer includes an offer to pay the costs up to
date of the offer. If the matter is proceeding to trial, the cost will
not be recoverable from the opponent, and the opponent will be
entitled to recover his/her costs after date of such an offer.

4.7. THE COSTS OF TWO SETS OF ATTORNEYS

Rule 70(8) states that where in the opinion of the Taxing Master, more
than one Attorney has necessarily been engaged in the performance of any
services covered by the tariff, each such an Attorney shall be entitled to be
remunerated on the basis set out in the tariff for the work necessarily done
by him.

The general rule is that a litigant will be allowed an Attorney in his

hometown or place of business and at the seat of the Court. The Northern
Province jurisdiction apply the principles as laid out in Sonnenburg v
Moima 1987(1) SA 571 (T) 575F-G.
In a recent unreported decision in the Free State Division Daffue J gave a
detailed summary of the applicable case law relating to the costs of two
sets of Attorneys. (See T.C. Salemane A.O. v Setsoto Local
Municipality, 28 January 2021: Case nr 1356/2020)

The said case is attached hereto at the end of this guide under Section U.

LEGAL COSTS ©LSSA 46

5. PRESCRIBED TARIFFS

CANDIDATES SHOULD BE ABLE TO:

• Explain the application of Rules 48, 67, 68 and 70 of the Uniform Rules
of the High Court, regarding:
o Party and Party costs;
o Attorney and Client costs;
o Attorney and own Client costs.
• Explain the application of Sections 80 and 81 of the Magistrates’ Courts
Act, Rules 33, 34 and 35 thereto and Tables A and B of Annexure 2 to
the Rules to:
o Party and Party costs;
o Attorney and Client costs;
o Attorney and own Client costs;
o Collections.

5.1 SUPREME COURT OF APPEAL

Rule 18 of the Supreme Court of Appeal applies to costs in appeal matters,
and the taxation thereof.

Constitutional Court
For the purpose of taxation and Attorney’s fees, the Constitutional Court
applies the Rules of the Supreme Court of Appeal.

5.2 HIGH COURT

Rule 70 of the Uniform Rules of Court applies to costs, taxation of costs
and review of taxation in litigious matters in the High Court.

5.2.1 PARTY AND PARTY

The prescribed tariff applies as between Party and Party. The
discretion of the Taxing Master in terms of Rule 70(5), to depart
from the tariff, is confined to exceptional or extraordinary cases,
where strict adherence to the tariff would be inequitable.

The Taxing Master may depart from the tariff and shall take the
following into account:
• The time necessarily taken;
• The complexity of the matter;

LEGAL COSTS ©LSSA 47

 • The nature of the subject matter in dispute;
• The amount in dispute; and
• Any other factors which he considers relevant.

The Taxing Master will usually only depart from the hourly tariff.

5.2.2 ATTORNEY AND CLIENT COST AND ATTORNEY AND OWN

CLIENT COST AGAINST A THIRD PARTY
In Attorney and Client, and Attorney and own Client orders it is
accepted that these costs reflect costs that a successful party may
recover from the opponents in excess of costs on a Party and Party
basis (Hawkins v Gelb and Another 1959 (1) SA 703 (W) at
705G-H). Previously a lot of emphasis was placed on the different
Court orders against a third party, i.e., Attorney and Client order
or Attorney and own Client order. It is important to distinguish
between costs payable by one’s own client and costs payable by a
third party (Ben McDonald Inc. and Another v Rudolph and
Another 1997 (4) SA 252 (T) at 257G-258F); Society of
Advocates of Kwazulu - Natal v Levin (4564/13) [2015]
ZAKZPHC 35; 2015 (6) SA 50 (KZP); [2015] 4 All SA 213
(KZP) (6 July 2015).

The taxation of such costs orders is in general more limited than

taxing against one’s own client. The principle is based on the fact
that the third party was never a party to the mandate between the
successful litigant and his/her Attorney. The discretion of the
Taxing Master will determine the limitations.

The Taxing Master will depart from the tariff unless a written
mandate exists, and a higher fee was agreed upon. In absence of
such a written mandate, the normal Party and Party tariffs, as
prescribed by the High Court Rules will apply.

In the High Court numerous references is made where the Taxing

Master will depart from the tariff on time-based items. In Aircraft
Completions Centre (Pty) Ltd v Rossouw 2004 (1) (SA) 123
(W) the Court confirmed the Taxing Master’s justifiable departure from
the tariff, as well as the power to determine the extent of the departure
from the tariff.

In Practice:
In Cambridge Plan AG v Cambridge Diet (Pty) Ltd and others
1990 (2) SA 574 (TPD) the Court laid down the guidelines to be
applied on taxation, where an order for Attorney and own Client
costs were awarded to the successful party:

LEGAL COSTS ©LSSA 48

 • Expenses which have been specifically authorised (expressly
or implicitly) may be recovered; provided the client is not
thereby overreached, or the expenses had not been incurred
through negligence or mala fides.
• Other expenses which are necessary should be recoverable.
Where there is no limitation in the mandate, expenses which
the Attorney bona fide and reasonably considered
necessary in managing his client’s affairs, should be allowed,
even though it may later turn out to have been
‘unnecessary’. An objective test for necessary expenses
would be to enquire whether work could be considered
normal or usual in the sense of an Attorney of reasonable
competence in the same position.

Example:
One must first obtain and read copies of medical reports before one
can determine whether they will be of any use.
• Fees which have been expressly or implicitly agreed to
should be recoverable provided the client is not thereby
overreached.
• Where there has been no agreement as to fees, the Attorney
may obtain only what he may validly recover; in the absence
of acquiescence by the client, that will in practice amount to
what the Taxing Master properly allows.

Practical note:
Proof of a proper fee mandate is required in order to recover costs
on an Attorney and own Client cost order. The fee mandate needs
to be concluded at the beginning of the matter.

However, in the unreported case of Kendall Investments (Pty)

Ltd v Limco Investments Inc (case no: 28569/99 – TPD) the
Court held that proof by the Attorney that the client has accepted
a higher fee during the proceedings, and proof of payment by the
client during the proceedings, construed a tacit/implied agreement
and is enforceable.

5.2.3 ATTORNEY AND OWN CLIENT

In the case of Attorney and Client costs, taxable against their own
clients, the tariff is not binding on Attorneys. It is, however, generally
accepted that it must be used and applied as a guide, in the absence
of an express or implied agreement to authorise higher charges. From
this it is clear that an agreement between an Attorney and his client
to pay fees at a rate higher than the tariff should be in writing to avoid

LEGAL COSTS ©LSSA 49

 any disputes. The onus to prove an agreement to pay more than tariff
rests on the Attorney.

In this regard the matter of T C Muller v The Master 1992 (4)

SA 277 (T) refers. The full bench decided that a Taxing Master,
who had to consider a Bill of Costs on the Attorney and own Client
scale in terms of the provisions of Section 73 of the Insolvency Act
No. 24 of 1936, was obliged to give effect to the agreement
between the Attorney and his client (the Trustee) in respect of the
Attorney’s fees, on condition that:
• The services claimed have been rendered,
• The disbursements claimed have been made,
• The Trustee is not thereby overreached.

5.3 MAGISTRATES’ COURT

Section 80 and 81 of the Magistrates’ Courts Act No. 32 of 1944, Rules 33,
34 and 35 thereto, as well as Tables A and B of Annexure 2 to the Rules,
lay down the rights, duties, functions, powers, and discretion relevant to
costs, taxation and review of taxation in the Magistrates’ Courts.

5.3.1 PARTY AND PARTY

Rule 33(5)(a) provides:
“The scale of fees to be taken by Attorneys as between Party and
Party shall-
 be that set out in Table A of Annexure 2 in addition to the
necessary expenses;
 in relation to proceedings under Section 65, 65A to 65M,
inclusive and 72 of the Act and all matters ancillary thereto
be that set out in Parts I and II respectively of Table B of the
said Annexure; and
 in relation to proceedings under Section 74 and 74A to 74W,
inclusive, of the Act and all matters ancillary thereto be that
set out in Part III of Table B of the said Annexure.”

In civil litigious matters, the prescribed tariff is therefore the

applicable tariff as between Party and Party, whether defended or
undefended.

(Note: The tariff does however differentiate between defended

actions and undefended actions).

Currently the following scales are applicable (with inception 19 June

2023:

LEGAL COSTS ©LSSA 50

 • Scale A: Claim or claims where the aggregate amount of
the claim or claims does not exceed R7, 000.00.
• Scale B: Claim or claims where the aggregate amount of
the claim or claims exceeds R7, 000.00 but does
not exceed R50, 000.00.
• Scale C: When the amount in dispute exceeds R50, 000.00,
but does not exceed the maximum jurisdictional
amount determined by the Minister from time to
time in respect of Magistrates’ Courts for Districts.
• Scale D: Claim or claims where the aggregate of the claim
or claims exceeds the maximum jurisdictional
amount determined by the Minister from time to
time in respect of Magistrates’ Courts for Districts
and the process is issued out of a Magistrates’
Court for a Regional Division or when the matter
is in respect of a course of action in terms of
Section 21(1B) (a) of the Act.

5.3.2 ATTORNEY AND CLIENT

Rule 33(5) (b) provides:
“The scale of fees referred to in paragraph (a) (iii) of this sub-rule
shall also be the scale of fees to be taken between Attorney and
Client in relation to proceedings under Section 74, 74A to 74W,
inclusive, of the Act.”

HINT:
A Party and Party bill and an Attorney and Client bill are drafted according to the same
tariff.
The Attorney and Client bill will however contain more items than the Party and Party
bill.
Apart from Rule 33(5) (b), the Rules do not lay down the tariff of fees as between
Attorney and Client.
(Lybrand Smite Trust (Ed.Ms.) Bop v Douche 1972(2) SA 804 (C) at 805 (C)).

Section 80(2) however provides:

“As between Attorney and client, the Clerk of the Court may in his
discretion...allow costs and charges for services reasonably
performed by the Attorney at the request of the client for which no
remuneration is recoverable as between Party and Party and for
which no provision is made in the Rules.”

LEGAL COSTS ©LSSA 51

 This discretion empowers the Clerk of the Court to allow an
Attorney and Client fee in addition to the Party and Party fee
prescribed in the tariff.

Where the Court has ordered the payment of costs by the

unsuccessful party on the Attorney and Client scale, the Clerk of
the Court is not only empowered to do so, but he is obliged to do
so.
(See Johnson v Martin t/a Interior and Exterior Decorators
1979 (1) SA 252 (C)).

Where the tariff makes no provision for a specific service, the Clerk
of the Court must decide what would be a fair and reasonable
remuneration for the services rendered. In this determination he is
not bound by any particular tariff.

(See Haney v Van Sly 1956 (4) SA 6 (K) at 8E – F).

As previously mentioned, the Taxing Master normally allows a

discretionary surcharge in order to give effect to an Attorney and
Client order.

5.3.3 ATTORNEY AND OWN CLIENT

It is uncertain whether the Taxing Master has the authority to tax
a bill on the Attorney and own Client scale between opposite
parties. Neither the Act nor the Rules grant the Court power to
award an Attorney and own Client costs order. There is no authority
available in this regard.

Between the Attorney and his client, Attorney and own Client costs
are recoverable in terms of an hourly tariff agreed on between the
Attorney and Client (expressly or by implication), or for a lump sum
agreed on.

This special agreement is recognised by the legislature and

protected in terms of Section 80(4). Section 80(4) provides:
“Any person who is liable to pay or who is sued for costs of any civil
proceedings in a Court otherwise than under an award by the Court
or under a special agreement, may require that those costs shall
be taxed by the Clerk of the Court as between Attorney and Client;
and thereupon any action for the recovery of those costs shall be
stayed pending the taxation....”.

The effect of this Section is inter alia:

• An Attorney can sue his client for work done in the
Magistrates’ Court without having the bill taxed;
LEGAL COSTS ©LSSA 52
 • The Defendant can apply for a stay of the action until the bill
is taxed;
• Unless some undue advantage has been taken of the one party
by the other, neither party to such a special agreement can insist
on taxation of a bill for such costs, unless the other party agrees
thereto (See Murray v Yoyo 1912 CPD 807 at 811).

When such a bill is taxed, the Taxing Master will be obliged to give
effect to such a special agreement. However, if the Attorney’s
mandate is in dispute, or the amount agreed upon is of an
unconscionable nature and the client is thereby overreached, it will
be for the Court to decide on the validity of the mandate or the
setting aside of the agreement.
See - Botha v Themistocles’s 1966(1) SA 107 (T), Law
Society of SWA v Stein 1923 SWA 47.

5.3.4 COLLECTIONS
In undefended litigious matters, or collections, the prescribed tariff
applies between Party and Party. Default judgment must be
granted for such costs, provided that it appears in the particulars
of claim as provided for in Rule 6(3) (a) (iii). This also applies to
VAT on the fees claimed; unless it is specified on the face of the
summons, judgment for such disbursements will not be granted.

As between Attorney and Client, the prescribed tariffs for

undefended matters are applicable.

Historically the Rules and guidelines of each Law Society relating to

collection matters, were applicable. The current LPC tariffs makes
no provisions in this regard.

Take note that VAT on collection commission may be charged from

1 May 1995.

5.4 INDUSTRIAL COURT

In terms of the new Labour Relations Act the Industrial Court falls directly
under the High Court and bills must thus be drafted in terms of the High
Court tariff.

LEGAL COSTS ©LSSA 53

6. BILLS OF COST

CANDIDATES SHOULD BE ABLE TO:

• Indicate the importance of drawing appropriate bills of cost.

• Indicate and explain the various pre-requisites for drawing a bill.
• Distinguish between “fees” and “disbursements”.
• Indicate the source of what can be claimed in the case of Attorney – Client and
Party – Party costs, respectively.

6.1 THE IMPORTANCE OF DRAWING GOOD BILLS OF COST

In accepting a mandate in a civil litigious matter, the Attorney undertakes
to perform the work with such a degree of skill, care, and attention, and of
such a quality or standard as may be reasonably expected. Part of this
work is the drawing of a proper bill of costs, when required.

When drawing a bill for costs to be recovered on behalf of the client, it is

important that all the costs the client is entitled to recover be included in
the bill. Failure to do so will result in financial loss for the client.

When drawing a bill for Attorney and own Client costs to be recovered from
the client, the Attorney suffers the loss of costs he is entitled to but fails to
include in the bill.

Because the client is always liable to his Attorney for Attorney and own
Client costs, the difference between that amount, and the amount the
Attorney recovers from the other party, is payable by the client. The
consequences of the discovery by a client that he had to pay more than he
would have had to pay, if the Attorney had performed his mandate
properly, is obvious.

6.2 PRE-REQUISITES FOR DRAWING A BILL

6.2.1 LIABILITY FOR COSTS
A client is liable to pay his/her Attorney’s costs. The liability
between parties is vested in a Court order and/or
agreement/settlement.

The following is a list of items not recoverable from the client:

• Unnecessary duplication of costs.
(Silber v Silber 1964(3) SA 473 (T))
• Misconduct/default by the Attorney rendering costs fruitless
to client.
LEGAL COSTS ©LSSA 54
 (Regal v African Superslate (Pty) Ltd 1962(3) SA 18
(A))
• Negligence/mistake by the Attorney resulting in unnecessary
application for condonation.
(Machumela v Santam Insurance Co Ltd 1977(1) SA
660 (A))
• Attorney’s daily dialogue with Counsel in a matter without
complexity (e.g., Rule 43 Application).
(Varkel v Varkel 1967(4) SA 129 (C))
• Unnecessary correspondence between instructing Attorney
and local correspondent.
(Herzfelder v McArthur, Atkins and Co. Ltd 1908 TS
408)
• Attorney acting not qua Attorney but in another capacity.
(City Real Estate v Ground Investment Group
(Natal)(Pty) Ltd and another 1973(1) SA 93 (N) at
98 H)
• Costs of preparing the appeal-court record including
unnecessary reports in an appeal record.
(Woji v Santam Insurance Co Ltd 1981(1) SA 1020
(A))
• Attendances to rectifying an error or an omission by a Judge.
(Hay v Poynton 1911 NLR 336)
• Copy of an order to keep when the case is completed.
(Indents (Pty) Ltd v Raghavjee and Another P.H.
1937(2) F. 87)

6.2.2 ESTABLISHING THE NATURE OF THE BILL TO BE DRAWN

After interpreting the instrument of debt, bearing in mind the
nature of the specific case, it should be clear what type of bill, or
bills must be drawn, e.g., costs of an action, urgent or ex parte
application, wasted costs of postponement, interim application etc.

6.2.3 DECIDING ON THE APPLICABLE SCALE AND TARIFF

Scale
Unless the instrument of debt specifies that costs are payable on
the Attorney and Client-, or Attorney and own Client scale, costs
are taxable as between Party and Party.

LEGAL COSTS ©LSSA 55

 Bills to be taxed against the Attorney’s own Client are always
taxable on the Attorney and Client scale (written mandate or tacit
agreement).

Tariff
See above for the discussion of the tariffs.

6.2.4 A COMPLETE AND PROPERLY KEPT FILE

Such a file is well organised and sorted logically and sequentially.
It contains proper file notes relating to all attendances, providing a
full record of everything done in relation to the case. To ensure
continuity and ease of reference it is advisable to implement a
uniform system on all file notes for all files providing for the
recording and noting of the time, date, reference, duration and
details of every attendance. It should not be necessary to revert to
any other source for outstanding information.

A meticulously kept file should be divided into the following

sections:
• Correspondence and attendances;
• Finance;
• Pleadings;
• Notices;
• Evidence in respect of merits and quantum;
• Counsel’s briefs;
• Finance.

This will be useful in Court when the matter goes to trial. However,
with a view to drawing a bill, the file must be sorted in such a way
to expedite the drawing and taxation of the bill.

6.2.5 SORTING FILE CONTENTS AND MAKING NOTES

Contents should be sorted into bundles, as follows:
• Pleadings, notices, affidavits, subpoenas, Counsel’s briefs
and returns of service, including all draft documents and
duplicate copies, in date sequence;
• Correspondence and file notes regarding attendances,
consultations, inspections or other meetings in date
sequence;
• Proof of all disbursements – finance file;
• Other documents in bundles in sequence as they were

LEGAL COSTS ©LSSA 56

 received and perused or discovered, e.g., your client’s
discovered documents, opposition’s discovered documents,
photographs, expert witness reports, etc.

The work, in respect of which fees and disbursements are claimed,

must be listed in the bill in the sequence in which it was performed.
On taxation, the Taxing Master may call for any document enabling
him to decide any matter arising from the taxation. A well organised
file will not only facilitate easier drawing of the bill, but also easier
taxation.

Whilst sorting file contents, short notes should be made prior to

attempting dictation, or writing out the draft bill for typing. Even
the most experienced Attorney or cost consultant cannot dictate a
proper bill without careful planning.
Develop your own methods to suit your style. Some of the
suggestions described here may not work all that well for you.

6.3 THE ANATOMY OF A BILL

6.3.1 FORMAL REQUIREMENTS
The new tariff which came into operation on 21 October 1996
specifically contains provisions aimed at simplifying and expediting
the drafting and taxing of bills in the High Court.

The requirements set out in the case of City Deep Ltd v JHB City
Council 1973 (2) 109 (W) at 119E, prescribed what a bill must
contain.

6.3.1.1 Date
This is the date on which the work was done. The date will
influence the percentage of surcharge or VAT which can
be levied on the fee. The items must follow each other in
the date sequence. Start with the date on which
instructions were first taken, and end with the last date
on which work was carried out, and which work can be
claimed for.

6.3.1.2 Item
Each item in the bill must be numbered. The purpose of
numbering each item is for easy reference when taxing,
settling, or arguing a bill, and imperative when a decision
of the Taxing Master is taken on review.

The Taxing Master will be entitled to refuse to tax a bill

if the items are not numbered. (See unreported review

LEGAL COSTS ©LSSA 57

 Case no. 13554/79 Lipman & Videtzky v Wentzel,
Comnianakis, Brasg & Pollack (WLD), 27/2/1980).

6.3.1.3 Number
This refers to the number of folios, pages, or period of
time, for example 20 folios, or a 30-minute consultation.
This is seldom included in a bill under a separate column.
The width of an A4 page, on which a bill is normally
printed, does not allow for an additional column, apart
from the columns for date, item, description, fees,
disbursements, and items taxed off. The number of folios,
pages or the number of minutes is usually, for practical
purposes, included in brackets after the description of the
work done.

6.3.1.4 Description of Item

This relates to the nature of the work done. The work must
be described precisely, briefly and to the point, not in
vague and general terms. Each item must be charged
specifically. During taxation there will be opportunity to
explain, supplement or amend incorrect information.

6.3.1.5 Fees
Fees charged for each item must be calculated, bearing
in mind the number of folios or pages, or the time spent
on work. It must also correspond with the applicable
prescribed tariffs.

6.3.1.6 Magistrates’ Court

In the Magistrates’ Court the tariffs are regularly
amended. The most important amendment came into
operation on:
• 19 June 2023

6.3.1.7 In the High Court

• 19 June 2023 – a new tariff came into operation.

The amounts of fees claimed may not include VAT; VAT

must be added at the end of the bill, where applicable,
VAT on disbursement is already included in your receipt,
you cannot charge VAT on these items again. VAT is only
claimable if the Attorney is a registered VAT vendor.

LEGAL COSTS ©LSSA 58

 6.3.1.8 Disbursements
Disbursements are moneys, excluding fees, paid out by
the Attorney on behalf of the client in respect of certain
expenses incurred in a matter, for example:
• Counsel’s fees;
• Sheriff’s fees;
• advertisement costs;
• Court fees (stamp duties);
• fees of tracing agents, assessors, witnesses, and
experts (including qualifying fees);
• travelling fees and subsistence allowances;
• expenses paid to various institutions to obtain
copies of records e.g., Police Reports, medical and
clinical records, transcripts of Court proceedings,
registration certificates of vehicles, and inquest
records;
• postages and other petty disbursements, e.g.,
costs of facsimiles sent or received, and telephone
calls made.

In certain Courts VAT is excluded from amounts of

disbursements in the bill and added in the allocatur on
the total amount of disbursements. This is incorrect, as
VAT is not payable on all disbursements, e.g., stamp
duties and postages. Where VAT was paid, e.g., on
Counsels’ accounts or Sheriffs’ fees, specify the amount
of VAT paid in respect of each such disbursement.

The Practice Rules of certain divisions require copies of

proof of disbursement to be attached to any Bill of Cost
presented for taxation and it is advisable to enclose
copies of disbursements when serving a Bill of Cost. It is
a practical Rule that can prevent a lot of frustration at
taxation and ensure efficiency.

6.3.1.9 Witness Fees

The tariff of allowances payable to witnesses in civil cases
is provided for in Appendix A of the Uniform Rules of the
High Court, in terms of Section 42 and the Supreme
Court and in terms of Section 51 bis of the Magistrates’
Courts Act. The Government Gazette GN R394a in GG
30953 of 11 April 2008 as amended by GN R965 in gg
41096 of 6 September 2017 makes no distinction
LEGAL COSTS ©LSSA 59
 between a normal witness and an expert witness and
limits the amount of income forfeited to R2 084.00 per
day. For the newest witness fees observe hereto
attached the Tariff of Allowances Payable to Witnesses in
Civil Cases dated the 11 April 2008, under Section T at
the end of the guide.

6.3.1.10 Postages
The amount payable in respect of ordinary stamps is
reviewed regularly. Varying tariffs depending on size of
envelope. The principle applies that this postage is
recoverable on the expense really incurred. Due to
technology (faxes, e-mails, etc.) the use of postage is
limited.

6.3.1.11 Facsimiles and E-mails Sent

In most divisions of the High Court, the Taxing Master
will allow, in addition to a fee, a disbursement of
R4.50/R5.00 per facsimile and e-mails sent. Allowing a
fee per page for e-mails sent does not constitute the
actual costs incurred. If e-mails are printed on the
receiving side a fee should be allowed for each page
printed as prescribed.

6.3.1.12 Qualifying Fees of Expert Witnesses

The Taxing Master may not allow qualifying/preparation
expenses on taxation without an Order of Court, or
alternatively an agreement between the parties. These
are the expenses incurred by a witness having qualified
himself/herself to adduce evidence on a matter which is
usually of a technical nature. It relates to performing of
experiments, investigations, or research. (See Kohne v
Union and National Insurance Ltd 1968 (2) SA 499
(N) at 500) – see Rogers J Judgment.

6.3.1.13 Taxed off

The Taxing Master enters the amounts taxed off on fees
or disbursements in this column.

6.3.2 ALLOCATUR
The allocatur is the calculation of the total of sub-totals and totals,
surcharges, disbursements, and VAT which will be recoverable in
terms of the bill. A signed and stamped allocatur is a certificate
by the Taxing Master and constitutes proof of the amount of the
debt. It is essential for the liquidity of the amount.
LEGAL COSTS ©LSSA 60
 It is common practice to use the following Form for the allocatur.

In HIGH COURT, MAGISTRATES’ COURT AND SUPREME COURT

OF APPEALS matters Government Gazette:

SUBTOTAL: R
LESS TAXED OFF: R
SUBTOTAL: R
DRAWING FEE (11%)

SUBTOTAL R
DISBURSEMENTS R
SUBTOTAL R
ATTENDANCE FEE (11% – 1st R10 000.00) R
ATTENDANCE FEE (6% – 2ND R10 000.00)
ATTENDANCE FEE (3% – BALANCE)
SUBTOTAL R
VAT ON FEES (15%) R
VAT ON DRAWING FEE (15%)
VAT ON ATTENDANCE FEE (15%)
TOTAL: R

See “Q. EXERCISE 6 | HIGH COURT ALLOCATION”

6.4 TERMINOLOGY IN A BILL

Where possible always use the terminology of the Rules and prescribed
tariffs. Use “Applicant/Respondent” or “Plaintiff/Defendant”, and
“Defendant’s Attorney” or “Respondent’s Attorney” instead of their names.

6.5 BREVITY AND ABBREVIATIONS

Keep descriptions of work as brief and concise as possible. However,
describe the item sufficiently clearly to avoid reverting to your file for
clarification of an insufficient description of an item at taxation.

Usage of abbreviations should be restricted to long phrases, names or

words which are repeated throughout the bill. Usage of the abbreviation
needs to be indicated before it is used.

6.6 DELAY IN DRAWING BILLS

A delay in drawing bills should be avoided. It is advantageous to draw a
bill whilst the matter is still fresh in your memory. You will be better able
to recollect relevant information. Delaying taxation and recovery of costs
allows the person liable for payment an opportunity to get rid of attachable
assets, or even to be sequestrated. This will lead to financial loss for your
client.
LEGAL COSTS ©LSSA 61
6.7 ADVANTAGES / DISADVANTAGES IN DRAWING OWN BILLS
Only the Attorney doing the work will know the full extent thereof. He will
also be best able to interpret his own file notes, and to give an exact
account of the matter in the form of a Bill of Costs. However, personal
knowledge of a matter does not guarantee a good and complete Bill of
Costs. A lack of experience in drawing and taxing bills of cost may result in
financial loss.

Drawing and taxing bills is the only manner in gaining knowledge of the
practical applications of prescribed Rules and tariffs and sometimes
conflicting but accepted practice Rules applicable in the different Courts. In
most legal practices opportunities to draw a bill are limited, not allowing
Legal Practitioners to stay abreast with often changing tariffs and practice
Rules. For the inexperienced Legal Practitioner, it is also a time-consuming
activity.

Where substantial amounts of costs and voluminous bundles of documents

are involved, it may be more costs effective to instruct a cost consultant to
draw the bill.

6.8 COST CONSULTANTS

Cost consultants are available to draw and tax bills on behalf of Attorneys.
It is an accepted practice to instruct cost consultants. The nominal fee(s)
charged by these experts can take a great deal of pressure off the Attorney.
Legal Practitioners must, however, remember that they remain responsible
for what is included in, or excluded from the bill.

A cost consultant drawn bill must be carefully scrutinised prior to the

certificate being signed (where applicable) or proceeding to taxation.
Including items in the bill for work which was never performed will be
considered to be unethical. Even though a cost consultant presents himself
as an expert this does not necessarily mean that this applies. The expertise
of the cost consultant must be verified. Only cost consultants who are also
practising Attorneys, may tax bills on behalf of Attorneys.

6.9 PRACTICAL HINTS

i. Never refer to a client as “client” in a bill. It conjures up ideas of an
Attorney and Client item. Always refer to your client as “Plaintiff” or
“Defendant”, “Applicant” or “Respondent”.
ii. Avoid using the word “confirm”. You will not be allowed an item for
writing a letter confirming a phone call etc.
iii.Do not tell a long story justifying a fee you are entitled to. However,
for letters, phone calls and consultations you must briefly state their
content. (Some Divisions allow letters written, letters received and
telephone calls to be grouped together. Although it eases the
LEGAL COSTS ©LSSA 62
 drawing process, it can result in a lengthy taxation, should the
opponent objects to the quantity and no agreement can be reached
between the parties).
iv. Your file is your unwritten Bill of Costs. Do not rely on your memory.
Make notes. No-one can remember all the happenings over a two
year or longer period of the average High Court action.
v. From the outset of a matter, you must prepare yourself for easily
drawing a bill with maximum results. The best way is to keep your
file in workable order. It is helpful if, as a matter of routine, a uniform
method is followed in your firm, so that any member of the firm can
take over the case and draw the bill.
Keep correspondence as well as notes of attendances in order of
date. If it is bulky, split it into calendar years.
Do not note attendances on your file cover. It is much easier working
through your bundle of correspondence and attendances, than
having to jump from one place to another when putting your bill
together. If a file is kept properly and in chronological order it is
easier to spot items that was done or must have been done where
the file has no record thereof.
vi. Keep notes of all the disbursements. For convenience you can keep
them on your file cover reflecting the date, the amount, to whom it
was paid and what it was for. If your firm uses computers to maintain
the bookkeeping, a print-out reflecting all disbursements and monies
received is very convenient. Remember that copies of accounts paid
should be kept on file as proof. A Finance sub-file is recommended
where all copies of disbursements can be kept. It ensures that all
disbursements are included in the Bill of Cost and minimise time
spent in making copies thereof for the taxation.
vii. Do not delay drawing a bill once a matter is finalised. It is much
easier drawing a bill whilst the matter is still fresh in your mind. A
well-drawn bill is not necessarily one that has nothing taxed off it.
You are never to claim for work that has not been performed. If you
doubt whether an item is Party and Party, or Attorney and Client,
include it in the bill. However, bear in mind the penalty if an amount
more than a specific percentage of fees is taxed off.
viii. Depending on the description of the work performed, an item may
or may not be allowed, e.g., you are not allowed a fee for furnishing
a verbal opinion on quantum at a consultation with your client. If
you label the item “traversing medico legal report with Plaintiff and
discussing same”, you will be allowed the consultation.
ix. Abbreviations can be used if references are provided. In determining
the length of a document (folios and/or pages), it is important to
reflect the correct quantity. With the current technology at our
disposal (scanners and computer programs), a correct count can be

LEGAL COSTS ©LSSA 63

 given.
x. An Attorney may act as Attorney and Counsel in the High Court and
will then be entitled to tax his fees on the same basis as Counsel.

7. SETTLING OF BILLS OF COST

CANDIDATES SHOULD BE ABLE TO:

• Indicate that the bill can either be agreed to by the parties or can be taxed.

There is no restriction on parties to settle or informally tax a Bill of Costs

inter partes, without resorting to taxation. This method of settling costs
is desirable. In some centres taxation dates are only available two and a
half to three months after drawing the bill. Very often, a Taxing Master is
not available on the date of taxation.

On request of the parties, the Taxing Master must sign and stamp the
allocatur of a bill settled between the parties. This should always be done
as a party may not proceed to deal with a bill unless it is signed and
stamped by the Taxing Master. The Taxing Master will probably require a
letter confirming the settlement of the bill before he will be prepared to
sign it.

The parties may also settle certain items, and thereafter proceed to
taxation on disputed items only. The advantage is that it will save time.

Items or bills settled between the parties, as opposed to those taxed by

the Taxing Master, are not subject to review.

HINT:
When settling a Bill of Costs take care to settle the items in the bill only and to finalise the
taxation.
Failure to do so after could result in the settlement establishing a new cause of action and
bar a successful litigant from being able to execute on the bill.

LEGAL COSTS ©LSSA 64

8. FORMAL REQUIREMENTS FOR TAXATION

CANDIDATES SHOULD BE ABLE TO:

• Indicate when notice for taxation must be given in:

o The High Court;
o The Magistrates’ Court;
o Appellate Division proceedings.
• Explain the importance of a certificate for purposes of taxation in the High Court.
• Indicate when a party can consent to the taxing of a High Court Bill of Costs in
his/her absence.

8.1 NOTICE OF TAXATION

8.1.1 HIGH COURT RULE 70(4) DETERMINES:
“The Taxing Master shall not proceed to the taxation of any Bill of
Costs unless he is satisfied that the party liable to pay same has
received due notice as to the time and place of such taxation and
notice that he is entitled to be present thereat: Provided that such
notice shall not be necessary - if the party against whom costs have
been awarded has not appeared at the hearing either in person or
through his legal representative; if the person liable to pay costs
has consented in writing to taxation in his absence; and for the
taxation of writ and post-writ bills.”

As per the Government Gazette No. 43000 published on 7 February

2020:
1. Once the bill is drafted it must be served on the Respondent
who will have 10 days to inspect the file and a further 10
days to file an objection.
2. In certain divisions the date for taxation can only be
requested after the 20 days period has lapsed. In other
divisions the date can be applied for prior to notice of
taxation and indicted on the said notice.
(i) The request for date can be done personally of through
e-mail and the party requesting date must produce
proof of service and that the 20 days has lapsed which
will then determine if the matter is opposed or
unopposed. (Please note that date allocated is
provisional date).
(ii) In case of opposed matter, the party setting the
matter down must serve notice of set down on the

LEGAL COSTS ©LSSA 65

 responded and provide proof of set down to the Taxing
Master at taxation.
(iii) If the matter is settled before the date allocated the
party requested the date bears the responsibility of
informing the office of the Registrar about the
settlement for the matter to be removed.
Should the matter be postponed during taxation
because either of the parties are not prepared or does
not have source documents such matter should not
get preferential date.
3. If the matter is removed from the roll due to non-appearance
of the parties, the matter should not get preferential date and
such matter must be set down before the same Taxing Master
unless the latter is unavailable on the day in question.
4. The parties allowed to appear before Taxing Master are the
litigants themselves or practising Attorney admitted practising
in the Gauteng Division of the High Courts.

SEE “M. FORM 26 NOTICE OF INTENTION TO TAX - BILL OF

COSTS”

8.1.2 MAGISTRATES’ COURTS RULE 33(15) DETERMINES

“Where costs or expenses are awarded to any party by the Court,
otherwise than by a judgment in default of the Defendant’s entry
of appearance to defend or on the Defendant’s consent to judgment
before the time for such appearance has expired, the party to
whom such costs or expenses have been awarded shall…
(b) prior to enrolling the matter for taxation, by notice as near
as may be in accordance with Firm 58 of Annexure 1-
(i) afford the party liable to pay costs at the time therein
stated, and for a period of ten (10) days thereafter, by
prior arrangement, during normal business hours and
on any one or more such days, the opportunity to
inspect such documents or notes pertaining to any
item on the Bill of Costs; and
(ii) require the party to whom notice is given, to deliver
the party giving the notice within ten (10) days after
the expiry of the period in subparagraph (1), as
written notice of intention to oppose, specifying the
items on the Bill of Costs objected to, and a brief
summary of reason for such objection…..” deliver a bill
of such costs or expenses and give at least 10 days’
notice of taxation for an hour to be fixed (generally or
specially) by the Clerk of the Court and he may include
LEGAL COSTS ©LSSA 66
 in such bill all such payments as have been necessarily
and properly made by him.”

SEE “K. EXERCISE 4 | BILL OF COSTS: MAGISTRATES’

COURT”

8.1.3 APPELATE DIVISION RULE 10 PART G (5) DETERMINES

“Before the Taxing Master taxes the Bill of Costs, he shall be
convinced that the party who has to pay the account, or his legal
representative, was properly notified of the time and place of such
taxation and of his right to be present: Provided that such notice is
unnecessary where the person liable for payment of costs has
consented, in writing, to taxation in his absence.”

Despite the above exceptions where notice of taxation can be

dispensed with under certain circumstances, the Legal Practice
Council has adopted a ruling that “an Attorney should, at all times,
give proper notice of taxation of his Bill of Costs and of the amount
of the Bill of Costs and of the amount of the bill as taxed to the
other party, even if such notice is not required in terms of the Rules
of Court”.

Although there are no procedural requirements that a third party

must be notified before costs are taxed against him, notice of
taxation must be given to that party, where he is liable for costs.
Failure to give proper notice of taxation will result in the bill being
regarded as untaxed, and the taxation unlawful and unenforceable.
(Case No. M 1032/85, E J Adams v T Harri, review of taxation
on 1/4/86, ECD).

8.2 CERTIFICATE
8.2.1 SECTION G ITEM 3(A) AND (B) OF RULE 70 OF THE HIGH
COURT RULES
“Whenever an Attorney employs the services of another person to
draft his Bill of Costs, a certificate shall accompany that Bill of Costs
in which that Attorney certifies that - the Bill of Costs thus drafted
was properly perused by him and found to be correct; and every
description in such bill with reference to work, time and numbers is
consistent with what was necessarily done by him.

The Taxing Master may-

if he is satisfied that one or more of the requirements referred to
have not been complied with, refuse to tax such bill;”

LEGAL COSTS ©LSSA 67

 8.2.2 THIS RULE 70 IS REPEATED IN THE APPELLATE DIVISION
RULES UNDER NOTE VII TO SECTION G OF RULE 10

8.2.3 A CERTIFICATE IS NOT REQUIRED IN THE MAGISTRATES’

COURT

Where a Bill of Costs is drafted by a cost consultant, or an articled

Clerk, the Attorney issuing a Bill of Costs for taxation is responsible
for any misstatements in such a Bill of Costs. He cannot escape
liability on the grounds of the person drawing the bill not being fully
familiar with what may not have been done.

8.3 CONSENT TO TAXATION IN ABSENCE

Consent to taxation in absence is usually obtained in liquidation and
sequestration matters, from a trustee or liquidator, but is not necessarily
limited to these. Presenting such consent on taxation to the Taxing Master
does not preclude the Taxing Master from exercising his discretion, and
from taxing off either fees or disbursements.

An example of such consent to taxation is attached to the precedent of the

bill in the sequestration application.

Example:
“I the undersigned, Mr X, in my capacity as liquidator of Y (Pty) Ltd (In
liquidation), hereby consent to the taxation in my absence of the Bill of
Costs appended hereto marked Annexure “A”.”
(Please note that a copy of such bill must be appended to the notice and
initialled on every page).

9. TAXATION

CANDIDATES SHOULD BE ABLE TO:

• Indicate the contents of the Rules applicable to taxation in the High and
Magistrates’ Court.
• Explain the provisions pertaining to taxability of High Court and Magistrates’ Court
matters, respectively.

9.1 APPLICABLE RULES

Taxation has always been regarded as an integral part of the judicial
process.
LEGAL COSTS ©LSSA 68
 The obligations of the parties to a suit are not finally determined until the
costs ordered by the Court have been taxed or settled.

9.1.1 GENERAL RULE GOVERNING TAXATION OF COSTS IN THE

HIGH COURT RULE 70(3) DETERMINES
“With a view to affording the party who has been awarded an order
for costs a full indemnity for all costs reasonably incurred by him in
relation to his claim or defence and to ensure that all such costs
shall be borne by the party against whom such order has been
awarded, the Taxing Master shall, on every taxation, allow all such
costs, charges and expenses as appear to him to have been
necessary or proper for the attainment of justice or for defending
the rights of any party, but save as against the party who incurred
the same, no costs shall be allowed which appear to the Taxing
Master to have been incurred or increased through over-caution,
negligence or mistake, or by payment of a special fee to an
Advocate, or special charges and expenses to witnesses or to other
persons or by other unusual expenses.”

Over-caution and negligence cannot be condoned by the Taxing

Master. See - Brenner Mills (PTY) Ltd v Taxing Master, High
Court of South Africa, Gauteng Division, Pretoria and Others;
Ex Parte Vollmer and Others (6686/21; 3767/2020) [2022]
ZAGPPHC 1014 (23 December 2022).

9.1.2 IN TERMS OF SECTION 14 TO THE GENERAL PROVISIONS OF

PART 1 OF TABLE A OF ANNEXURE 2 TO THE MAGISTRATES’ COURTS
RULES
“The Clerk of the Court shall on taxation disallow any charge
unnecessarily incurred”.

Rule 33 of the Magistrates’ Courts Rules is also applicable.

9.1.3 RULE 9(1) OF THE RULES OF THE APPELLATE DIVISION

DETERMINES
“The costs incurred in any appeal or application shall be taxed by
the Registrar, who when exercising this function is called the Taxing
Master, but the taxation shall be subject to the review of the Court.”

9.2 TAXABILITY OF COSTS

9.2.1 IN TERMS OF MAGISTRATES’ COURT RULE 33(3):
“Unless the Court shall for good cause otherwise order, costs of
interim orders shall not be taxed until the conclusion of the action,

LEGAL COSTS ©LSSA 69

 and a party may present only one bill for taxation up to and
including the judgment or other conclusion of the action.”

Costs of interim orders are therefore only taxable on conclusion of

the main action unless the Court orders otherwise. The Taxing
Master can only tax costs up to and including the judgment, or
other conclusion of the action. Costs of issuing a warrant of
execution or arrest must be specified on the warrant, and will be
assessed, before issue, by the Clerk of the Court in terms of Rule
33(14)(a). Rule 33(14)(b) provides that the costs of Section 65,
65A to 65M and Section 72 proceedings must be inserted on the
relevant process and is assessable by the Clerk of the Court before
issue.

On termination of an Attorney’s mandate, costs are taxable at any

stage of the proceedings as between the Attorney and his own Client.
This is subject to the provisions of Section 80(4) in respect of special
agreements, which allows an Attorney to sue his client for costs in
terms of such an agreement, without first having to tax same.

Rule 33(18) states: “Where a Bill of Costs as between Attorney and

Client is required to be taxed, taxation shall take place… whether or
not an action therefor is pending.”

Rule 33 (19) states: “Where liability for costs is determined without

judgment of the Court by virtue of the provisions of these Rules or by
a settlement recorded in terms of Rule 27(8), such costs shall be
taxable by the Registrar of Clerk of the Court as if they were awarded
by the Court.”

Therefore, the notion that Taxing Masters refuse to tax Bills of Costs
if a Court order is absent or is incorrect. A Taxing Master must tax
such an account. It must also be kept in mind that the Fee Dispute
Resolution Committee of the Legal Practice Council has no jurisdiction
to tax litigious accounts. Therefore the only place where the bill can
be taxed is the Magistrates’ Court.

9.2.2 INTERIM APPLICATIONS

In the High Court, there is no Rule precluding a party from taxing a
Bill of Costs for interim applications, where a costs order was granted,
or an undertaking to pay costs of such application obtained. Costs will
therefore be taxable immediately. This will also apply to an order for
wasted costs occasioned by a postponement.

This practice is generally accepted throughout South Africa, despite

the judgment handed down in Scott v Nel NO and Another 1963
(2) SA 384 (E). The second Respondent in this case agreed to pay
LEGAL COSTS ©LSSA 70
 the Applicant’s taxed costs as between Party and Party in respect
of a medical examination of the Applicant, as well as related cost.
Van der Riet J held that the Taxing Master had been justified in
upholding an objection that it was premature to tax a Bill of Costs
before judgment, or before a Court order to that effect had been
obtained. Jacobs and Ehlers are of the opinion that this judgment
is incorrect.

The Taxing Master has the authority to tax costs incurred before
and after the conclusion of the action (Rule 70(1) and (3), and
Section H of Rule 70).

In the Magistrates’ Court, interim applications may not be taxed

without an order of Court.

9.3 DISCRETION AND FUNCTIONS OF TAXING MASTER

The Taxing Master has the discretion to allow, disallow or reduce various
items of a Bill of Costs. This discretion must be judicially exercised. His/her
decision must be reasonable and just, based on sound principles and with
due regard to all the circumstances of a case. It is his/her duty to carry out
a costs order, not to vary it. See the unreported cases of the Gauteng High
Court, Pretoria -JB Scott Attorneys v Tetani (Review) (36381/2019)
[2023] ZAGPPHC 358 (26 May 2023); and Conrad Kruger Inc and
Another v Taxing Master and Another (2018/45232) [2020]
ZAGPPHC 212 (23 March 2020).

The Taxing Master’s function is not limited to fixing fees based on the
assumption that the work charged for is the work that has been performed.
He/she ought to demand proof of services for which payment is demanded.
In appropriate circumstances he/she can also decide in which Court
proceedings should have been instituted. He/she must not allow
himself/herself to be deprived of his discretion by Rules of Practice.

9.3.1 HIGH COURT RULE 70(5)(A) AND (B) DETERMINES

“The Taxing Master shall be entitled, in his discretion, at any time
to depart from any of the provisions of this tariff in extraordinary
or exceptional cases, where strict adherence to such provisions
would be inequitable.

In computing the fee to be allowed in respect of items 1, 2, 3, 6, 7

and 8 of Section A; 1, 2 and 6 of Section B and 2, 3, 4 and 7 of
Section C, the Taxing Master 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 which he considers relevant.”

LEGAL COSTS ©LSSA 71

9.4 UNWRITTEN RULES OF PRACTICE AND LOCAL REGISTRAR’S
RULINGS
In all High Court Divisions, and to a lesser extent in the Magistrates’ Courts,
certain accepted and well-established Rules of Practice exist. These Rules
may differ substantially from one division to another. It is advisable to
study the Rules applicable in your own division.

These Rules usually relate to:

• specific amounts of fees or disbursements which the Taxing Master
will allow or disallow, or
• a group of items that need not be specified separately but can be
grouped together as one item. A study of the precedents of the bills
will reveal some Practice Rules.

9.5 PRACTICAL HINTS

i. As a Rule, do not advise your client to settle costs for a lump sum,
unless you have made some calculations; if a bill is drawn, the
amount thereof invariably it exceeds the amount offered by quite a
substantial margin;
ii. If possible, attend to the taxation yourself. Otherwise, ensure that
the person attending to the taxation is properly prepared, and has
an adequate knowledge of the background in order to properly
protect your client’s interests;
iii. Prepare properly, whether you are opposing or presenting your own
bill, but especially when you are not familiar with the case. This
requires not only knowledge of the items in the bill, but also of the
case as a whole. Mark the items in dispute so that the undisputed
items need not be dealt with unless the Taxing Master requires
clarification;
iv. Attempt to settle the bill with your opponent, or at least, supply your
opponent with a list of items you intend to object to. Obtain a list of
disputed items from your opponent. Take care not to create a new
cause of action;
v. If you are unable to settle the disputed items before the date of
taxation, attempt to agree with your opponent on the list of items to
be presented to the Taxing Master for his ruling;
vi. Proof of all disbursement vouchers should be attached to the Bill of
Cost.
vii. Compare the time and dates on the disbursement account to the
time spent by the party or Attorney;
viii. Check the disbursements for calculation errors;
ix. Be on the lookout for interest added, as this will be disallowed in a
LEGAL COSTS ©LSSA 72
 Party/Party Bill of Cost;
x. With the possibility of reviewing a taxation in mind, make notes of
the grounds for objections advanced at the taxation for each item in
dispute.
xi. Do not rely on your opponent for final calculations. Make sure that
they are correct before presenting the allocatur to the Taxing
Master for his signature;
xii. When you settle the bill with the other side without proceeding to
taxation, you must include in the settlement figure a drawing fee. If your
opponent does not agree to pay the attendance fee, present the bill to
the Taxing Master for his certificate, on the taxation date in which case
you are entitled to an attendance fee;
xiii. Do not allow the opposition to stampede you – always argue your
case strongly. Most taxations are set down for approximately half an
hour. If you argue strongly at the beginning, it may wear down the
opposition and he may be inclined to skim over the balance of the
bill;
xiv. Taxation is an extension of the Court proceedings and should be
conducted with the same respect and professionalism as in the
proceedings in open Court. Dress properly and be punctual, address
the Taxing Master formally and your opponent with respect.

9.6 PENALTIES
Rule 70, Section E item 3(b) (ii) of the High Court Rules determines:
“The Taxing Master may-
if he is satisfied that fees are being charged in a party-and-party Bill of
Costs-
(aa) for work not done;
(bb) for work for which fees are to be charged in an Attorney-and-Client
Bill of Costs; or
(cc) which are excessively high, deny the Attorney the remuneration
referred to in items 1 and 2 of this Section, (drawing fee) if more than
20 % of the number of items in the Bill of Costs, excluding expenses,
or of the total amount of the Bill of Costs, including expenses, is taxed
off.”

This Rule is repeated in the Appellate Division Rules, Note VII to Section E
of Rule 10.

Magistrates’ Courts Rule 33(18) determines:

“Where more than one-fourth of the bill (excluding expenses) is taxed off,
the party presenting the bill shall not be allowed any costs for taxation.”

LEGAL COSTS ©LSSA 73

 Section 80(4) also prescribes penalties.

9.7 APPEARANCE ON TAXATION

Only persons who are permitted to Practice in the High Court are allowed
to appear on taxation before a Taxing Master.
(See Bills of Costs (Pty) Ltd v Registrar, Cape N O 1979 (3) SA 925
(AD)).

The only persons who can appear on taxation in the Magistrates’ Court, are
those referred to in Sections 20, 21 and 22 of the Magistrates’ Courts Act
No. 32 of 1944, read with Rule 52.

Candidate Attorneys may not appear on taxation in the High Court.

9.8 INTEREST ON A TAXED ALLOCATUR

Once a Bill of Cost is taxed and signed by the Taxing Master it is
immediately due and payable if taxation takes place by virtue of a Court
order.

Interest on a taxed Bill of Cost runs from the date the allocatur was signed
by the Taxing Master up to date of payment. The prescribed interest rate
on taxed Bills of Cost from date of taxation will be as per Section 1(1) of
the Prescribed Rate of Interest Act No. 55 of 1975.

If the Bill of Cost was taxed at the request of client or by agreement the
Attorney can issue summons and possibly get summary judgement as the
claim has been quantified.

9.9 CONSENT TO TAXATION

Example of Consent to taxation:

LEGAL COSTS ©LSSA 74

LEGAL COSTS ©LSSA 75
10. REVIEW OF TAXATION

CANDIDATES SHOULD BE ABLE TO:

• Explain the contents of the Rules applicable to review of taxation in the

Magistrates’ Court and High Court, respectively.
• Indicate which items will be subject to review.
• List the principles on which the Court will interfere with an award by the Taxing
Master.

10.1 APPLICABLE RULES

Rule 48 of the High Court Rules, Section 81 and Rule 35 of the Magistrates’
Courts Act No. 32 of 1944, and Rule 9(2) to (5) of the Appellate Division
Rules prescribes the procedures applicable to review of taxation.

A Bill of Costs cannot be reviewed until the allocatur has been completed,
and until it has been signed by the Taxing Master or Registrar, certifying
the amount for which the bill has been taxed. Until then, review
proceedings will be premature.

10.2 ITEMS SUBJECT TO REVIEW

Any item, or a part of an item, which was objected to at taxation before
the Taxing Master, or was disallowed mero motu by the Taxing Master,
will be subject to review. This principle was followed in Jonker and Others
v Taxing Master of the High Court and Another (2769/2017) [2019]
ZAFSHC 56 (17 May 2019); in which matter corroboration was found in
Daywine Properties (Pty) Ltd v Murphy and Another 1991 (3) SA
216 (D); Kruger v Secretary for Inland Revenue 1972 (1) SA 749
(C) at 750F;

Although Magistrates’ Courts Rule 35 does not specifically state that items
disallowed mero motu by the Taxing Master will be subject to review, it
was held in Paruk v Lallo 1979 (3) SA 653 (D) that an item can be
taken on review even where it was not objected to before the Taxing
Master.

10.3 PRINCIPLES ON WHICH THE COURT WILL INTERFERE

The Court is reluctant to interfere with the Taxing Master’s discretion. It
will do so when the Taxing Master:
• acted upon a wrong principle;

• did not exercise his discretion properly, or not at all;

LEGAL COSTS ©LSSA 76

 • disregarded factors or principles which were proper for him to
consider, or considered others which were improper for him to
consider;
• incorrectly interpreted Rules of law;
• clearly misdirected himself, his decision being incorrect. See -
Jonker and Others v Taxing Master of the High Court and
Another (2769/2017) [2019] ZAFSHC 56 (17 May 2019).

11. RECOVERY OF COSTS

CANDIDATES SHOULD BE ABLE TO:

• List the steps that can be taken.

11.1. SUMMARY
Taxed costs may be recovered from the unsuccessful party by execution in
pursuance of a judgment for costs. However, execution cannot take place
where the costs have been taxed or settled by agreement but must be sued
for like any other debt. (See Haeusler v Haeusler 1956 (1) SA 60 (N)
at 62). Once a judgment for such costs is obtained, execution steps can
be undertaken.

Rule 45(2) of the High Court Rules provides:

“No process of execution shall issue for the levying and raising of any costs
awarded by the Court to any party, until they have been taxed by the
Taxing Master or agreed to in writing by the party concerned in a fixed
sum....”

Section 80(3) of the Magistrates’ Courts Act No. 32 of 1944 provides:

(3) “Payment of costs awarded by the Court (otherwise than by a
judgment in default of the Defendant’s appearance to defend or on
the Defendant’s consent to judgment before the time for such
appearance has expired) may not be enforced until they have been
taxed by the Clerk of the Court.”

In respect of the recovery of costs against a client, the Courts have

unanimously decided that an Attorney cannot recover costs, incurred in a
lawsuit, in an action against his client on an untaxed bill. This however only
applies to High Court matters.

In the Magistrates’ Court an Attorney can sue his client on an untaxed bill.

Section 80(4) of the Magistrates’ Courts Act No. 32 of 1944 provides:

LEGAL COSTS ©LSSA 77

 (4) “Any person who is liable to pay or who is sued for costs of any civil
proceedings in a Court otherwise than under an award by the Court
or under a special agreement, may require that those costs shall be
taxed by the Clerk of the Court as between Attorney and client; and
thereupon any action for the recovery of those costs shall be stayed
pending the taxation....”

12. LEGAL AID MATTERS

CANDIDATES SHOULD BE ABLE TO:

Indicate the basis for remunerating Attorneys in respect of legal aid matters.
• Explain whether an Attorney who acts in a legal aid matter may receive additional
fees directly or indirectly from the client.
• Explain the principles applicable to civil litigation matters where legal aid applies.

12.1 APPLICABLE RULES

The Legal Aid Board is an autonomous statutory body established by the Legal
Aid Act No. 22 of 1969, with the power to obtain the services of Legal
Practitioners and to remunerate them. It can stipulate conditions on which legal
aid is rendered, including conditions in respect of the recovery of costs ceded
to the Board, and conditions regarding payment of contributions to the Legal
Practitioner by the persons to whom legal aid is rendered.

The basis for remunerating Attorneys and Advocates is dealt with fully in
Chapter 5 of the Consolidated Legal Aid Guide and annexures thereto. A
Legal Practitioner who accepts instructions from the Legal Aid Board will be
remunerated in accordance with the prescribed tariffs of fees contained in
Annexure E to the Consolidated Legal Aid Guide. No additional fees may be
received directly or indirectly by him from the client or from any other
source, in respect of the period after the inception of legal aid. Such
conduct constitutes unethical conduct and may be referred to the Legal
Practice Council for investigation.

The most recent amendment to the tariff of fees and disbursements

applicable in legal aid matters is available on www.legal-aid.co.za.

12.2 CIVIL LITIGIOUS MATTERS

The Attorney has a duty to inform all concerned parties in a litigious matter
that legal aid applies. This will affect furnishing of security for costs,
Counsel’s fees, as well as the Attorney’s own fees.

It is the duty of the Attorney to draw and tax a Bill of Costs against the
opposing party, and to recover the costs under certain circumstances.

LEGAL COSTS ©LSSA 78

 The fees recoverable from the other party would be taxable in terms of the
prescribed Rules and Tariffs, subject to the general Rules relating to costs.

Attorney and Client fees payable by the Legal Aid Board will usually amount
to 80% of the applicable prescribed tariffs. In some instances, the board
may impose restrictions on the maximum amount of the legal costs’
payable to the Legal Practitioner.
Counsel’s accounts will not be payable by the Attorney concerned, but by
the Legal Aid Board directly to Counsel.

CANDIDATES SHOULD BE ABLE TO:

• Indicate how VAT can be levied.

12.3 SUMMARY
Section 67(3) of the Value-Added Tax Act No. 89 of 1991, which came into
operation on 30 September 1991, was intended to allow Attorneys to add
VAT onto prescribed fees. That way they would not be out of pocket in
paying VAT out of those fixed tariffs. It was not intended to allow a litigant
to add VAT onto the legal costs incurred by him in suing or defending a
claim. This was the Courts conclusion in Whittlesea v Clerk of the Civil
Court, Pietermaritzburg 1992 (1) SA 603 (N) on 608, 609.

After this case, the Appellate Division-, the High Court- and Magistrates’
Courts Rules were amended to provide for the addition of value added tax
to legal costs in civil litigious matters. See Rule 70(3A) of the High Court
Rules, Rule 9(1A) of the Supreme Court of Appeal Rules, and Rule 33(23)
of the Magistrates’ Courts Rules.
These amendments were published in Government Gazette no. 13759 of 7
February 1992 in terms of GN 406, 407 and 405 respectively, and came
into operation on 9 March 1992.

The effect of these amendments is that the Clerk of the Court or the Taxing
Master is entitled to allow VAT as a disbursement, in addition to the
prescribed fees claimed by a litigant. VAT should not be allowed as a
disbursement where the successful party, who has been awarded costs, is
a vendor for VAT purposes and is entitled to claim an input tax credit in
respect of those costs (Price Waterhouse Meyernel v The
Thoroughbred Breeders’ Association of South Africa 1993 (3) SA 54
SCA) VAT of 15 % is applicable to date.

LEGAL COSTS ©LSSA 79

D. REFERENCE SOURCES
1. TEXTBOOKS

TITLE AUTHOR/S
Taxation of Costs in the Higher and Lower Courts A Albert Kruger and Wilma
Practical Guide, Lexis Nexis, 2010 Mostert
Taxation of Legal Costs in South Africa, Juta, 2014 Rochelle Francis-Subbiah
The Civil Practice of the Superior Courts of South Africa 6th Herbstein and Van Winsen
edition, Juta, 2022
The South African Legal Practitioner A Commentary on the P Ellis, AT Lamey
Legal Practice Act, Lexis Nexis
Law of Attorneys’ Costs and the Taxation Thereof, Juta, M Jacobs and NEJ Ehlers
1979
Law of Costs, Butterworths, 2022 AC Cilliers
Jones & Buckle: Civil Practice of the Magistrates’ Courts in Van Loggerenberg
South Africa 10ed Juta

Taxation of Bills of Costs in the Superior Courts of South FJ Roos

Africa, Cape Town & Johannesburg, 1947
Superior Courts Act 10 of 2013, Magistrates’ Courts Act 32 Juta
of 1944 and rules & Periodic Time Charts 2021 Edition, Juta
Accounting for Attorneys, second edition, 2019, Lexis Gordon Adams, Silke de
Nexis Lange, Ania Storm

LEGAL COSTS ©LSSA 80

2. CASE READING LIST

1. Nel v Waterberg 1946 AD 597 (607, 608);

2. Bill of Costs (Pty) Ltd & Another v Registrar 1979 (2) 925 (A);
3. Santam Bank vs Kellerman 1978 (1) 1159 (C);
4. Kgomo v S A Eagle Insurance 1981 (2) 461 (T);
5. Rogoff v The Master 1981 (2) 861 (C);
6. De Witt v De Witt 1982 (4) 596 (C);
7. Webb v Botha 1980 (3) 666 (N);
8. J K Fulton (Pty) Ltd v Logic Engineering Enterprises (Pty) Ltd 1982
(1) 166 (T);
9. Truter, Crous, Wiggil & Vos v Udwin 1981 (4) 68 (T);
10. Magwill Carriers (Pty) Ltd v National Transport Commission 1982
(1) 166 (T);
11. Sanvido & Sons (Pty) Ltd v Aglime (Pty) Ltd 1984 (4) 339 (C);
12. Van Rooyen v Commercial Union Assurance Co of SA Ltd 1983 (2)
465;
13. Benson v Walters 1984 (1) 73 (AD);
14. Sonnenberg v Moima 1987 (1) SA 571 (T);
15. Schoeman v Schoeman 1990 (2) SA 37 (ECD);
16. Morris v Commercial Union Assurance Co of SA Ltd 1990 (3) SA 934
(W);
17. Cambridge Plan AG v Cambridge Diet (Pty) Ltd & Others 1990 (2)
SA 574 (T);
18. Whelan v Whelan 1990 (2) SA 29 (ECD);
19. Peele (Edms) Bpk v Die Administrateur Oranje Vrystaat 1982 (3)
261 (O);
20. S A Permanent Building Society v Powel & Others 1986 (1) SA 722
(A);
21. Reef Lefevre (Pty) Ltd v SA Railways & Harbours 1978 (4) SA 961
(W);
22. Toxopeus v Kwanda Tile & Concrete Works (Edms) Bpk & Others 1988
(3) 440 (T);
23. Warmbad Makelaars v Marais 1983 (2) SA 417 (T);
24. Van Rooyen v Commercial Union 1983 (2) SA 465 (O);
25. Van Aswegan v Lombard 1965 (3) SA 613 (A);

LEGAL COSTS ©LSSA 81

26. Ocean Commodities Inc & Others v Standard Bank of SA Limited 1984
(3) SA 15 (A);
27. Dos Santos v First City Brokers 1990 (2) SA 409 (C);
28. Mafokeng v General Accident Insurance Ltd 1990 (2) SA 712 (W);
29. Nell v Nell 1990 (3) 451 (NC);
30. Swart v Anderson 1963 (4) 628 (E);
31. Pharumela & Others v St John’s Apostolic Faith Mission of SA &
Another 1975 (1) 311 (T);
32. Rentekor (Pty) Ltd & Others v Rheeder and Berman NNO & Others 1988
(4) 469 (Y);
33. Syfrets Mortgage Nominees Ltd v Cape St Francis Hotels (Pty) Ltd 1991
(3) 240 (D);
34. Khan v Mzovuyo Investments (Pty) Ltd 1991 (3) 47 (TK);
35. Bowman v Avraamides 1991 (1) 92 (W);
36. Daywine Properties (Pty) ltd v Murphy & Another 1991 (3) 216 (D);
37. Malcolm Lyons & Munro v Abro & Another 1991 (3) SA 464 (W);
38. Muller v The Master & Others, 1992 (4) SA 277 (T);
39. Ashersons v Panache World (Pty) Ltd, 1992 (4) SA 611 (C);
40. Niceffek v Eastvaal 1993 (2) SA 144 (O);
41. Zeelie v General Accident Co Ltd 1993 (2) SA 776 (E);
42. J & I Motors v C & S Transport 1993 SA 168 (O);
43. Hoosan v Joubert 1964 (4) SA 291 (TPD);
44. Johnson v Martin T/A Interior & Exterior Decorators 1979 (1) SA
253 (C);
45. Sybrand Smit Trust (Edms.) Bpk v Fouche 1972 (2) SA 804 (CPD);
46. City Real Estate Co v Ground Investment Group (Natal) (Pty). Ltd.
and Another 1973 (1) SA 93 (NPD);
47. Law Society of the Cape of Good Hope v Windvogel 1996 (1) SA
1171 (C);
48. SABC v Corrective Action Holdings 1999 (3) SA 601 (W);
49. Payn Components SA Ltd v Bovic Gaskets CC & Others 1999 (2) SA
409 (W);
50. Badenhorst v Balju Pretoria Sentraal & Andere 1998 (4) SA 132 (T);
51. Aircraft Completions Centre (Pty) Ltd v Rossouw & Other [2003] 3
All SA 617 (W);
52. Malcolm Lyons & Munro v Abro and Another 1991 (3) SA 464 (W);

LEGAL COSTS ©LSSA 82

53. Transnet Ltd v Witter (517/2007) (2008) ZASCA 95 (16 September
2008);
54. Kendall Investments (Pty) Ltd v Limco Investments Inc
(unreported case nr: 28569/99 TPD;
55. The South African Association of Personal Injury Lawyers v RAF
And Other (South Gauteng 32894/2012);
56. De La Guerre, JE v Ronald Bobroff & Partners (North Gauteng
22645/2011);
57. Price Waterhouse Meyernel v The Thoroughbred Breeders’
Association of South Africa 2003 (3) SA 54 SCA;
58. Nedperm Bank Ltd v Desbie (Pty) Ltd 1995 (2) SA 711 W;
59. Nedperm Bank Ltd v RAF 2000 (1) SA 1993 T;
60. Road Accident Fund v Nnosa and Another 2005 (4) 575 T;
61. Serrurier v Korzia 2010 (3) SA 166 W;
62. Bayport Securitization RF Ltd and Law Society of South Africa v
University of Stellenbosch Law Clinic & Others case 507/2020;
63. Coetzee v Taxing Master, South Gauteng High Court and Another
(2010/14197) [2012] ZAGPJHC 175; 2013 (1) SA 74 (GSJ) (19
September 2012);
64. JB Scott Attorneys v Tetani (Review) (36381/2019) [2023]
ZAGPPHC 358 (26 May 2023);
65. Conrad Kruger Inc and Another v Taxing Master and Another
(2018/45232) [2020] ZAGPPHC 212 (23 March 2020);
66. Society of Advocates of Kwazulu - Natal v Levin (4564/13) [2015]
ZAKZPHC 35; 2015 (6) SA 50 (KZP); [2015] 4 All SA 213 (KZP) (6
July 2015);
67. Jonker and Others v Taxing Master of the High Court and Another
(2769/2017) [2019] ZAFSHC 56 (17 May 2019;

68. Daywine Properties (Pty) Ltd v Murphy and Another 1991 (3) SA
216 (D); Kruger v Secretary for Inland Revenue 1972 (1) SA 749
(C) at 750F;

69. Brenner Mills (PTY) Ltd v Taxing Master, High Court of South Africa,
Gauteng Division, Pretoria and Others; Ex Parte Vollmer and Others
(6686/21; 3767/2020) [2022] ZAGPPHC 1014 (23 December
2022);

70. MKHATSHWA AND OTHERS V MAKHATSHWA AND OTHERS

CCT220/20.

LEGAL COSTS ©LSSA 83

 ATTORNEY’S MONTHLY BUDGET

Rental
Secretary
Receptionist
Messenger
Bookkeeper
Candidate Attorney
Entertainment
Tea/Coffee
Fax machine
Photocopier
Motor vehicle finance
Maintenance
Petrol
Telephone
Cellphone
Stationery
Cartridges
Subscriptions
Books
Insurance
Membership fees
Other

TOTAL

LEGAL COSTS ©LSSA 84

 F. EXERCISE 1 | NON-LITIGIOUS BILL OF COST

Letterhead

Tax invoice #

CLIENT NAME
CLIENT ADDRESS
Our ref: Matter/Proforma Number XXX
Billing Timekeeper XXX
Our Vat Reg No.: Client VAT Number XXX

Date: 01/03/2015
CONTACT XXX

RE: DRAFTING OF LICENCE AGREEMENT FOR XXX

Date R Description – Work done

24/02/2015 Attending meeting with client and
representatives of xx (2 hours)

25/02/2015 Attending meeting representatives of xx (45

min)

25/02/2015 Reviewed documentation received from xx

(30 folios)

27/02/2015 Drafted and prepared a software development

agreement (15 folios) for review by xx,
include drafting notes for items requiring
discussion with xx, 2 emails and telephone
calls to xx and xx to discuss the draft (15 min)

27/02/2015 Settled the agreements and sent to xx for

review (45 min) candidate attorney

27/02/2015 Telephone to xx to schedule a meeting to

discuss the outstanding matters on the
software development and software
subscription agreements (5 min)

LEGAL COSTS ©LSSA 85

02/03/2015 Meeting with xx and xx to discuss outstanding
issues on the software subscription and
software development agreements and take
further instructions (60 min)

03/03/2015 Reviewed documentation received from xx at

xx (including business requirements for
different software components, user manuals,
and support costs and reviewed (2 hours)
candidate attorney

05/03/2015 Review and mark-up of the software

development agreement, incorporating the
outcome of the earlier meeting (17 folios)

06/03/2015 Sent clean copies of the two agreements to

xx, and advised them of the requirement for
a separate services agreement with xx (15
min)

Total FEES R

VAT R

Total due for FEES (INCLUDING VAT) R

Description – COSTS (DISBURSEMENTS) VAT in R Amount in R

To email transmission charges R R

To laser printing charges R R

To telephone charges R R

Total COSTS (DISBURSMENTS) R R

Total due for COSTS (Disbursements)(VAT incl.) R

TOTAL DUE FOR THIS INVOICE (including VAT) R

LEGAL COSTS ©LSSA 86

G. EXERCISE 2 AND 3 |NON-LITIGIOUS BILL OF COST
EXERCISE 2

You represent your client in a criminal matter and your fee agreement with
him/her is as follows:
• You will charge R50 per telephone call made/received, R1 000 per
hour or pro-rata for lesser periods in respect of consultations,
preparation and time spent on the file. Your client will also pay you
your disbursements for traveling expenses.
• Your client pays you a deposit of R8 000 against your fees and
disbursements. You are VAT registered.
• You receive a phone call from your client requesting an appointment
whereafter you attend to your client for a 2-hour consultation.
• You then phone the prosecutor and attend Court on postponement
for 30 minutes and you spent 30 minutes perusing the prosecutor’s
docket. Thereafter you consult with your client and client’s witness
for 1 hour, prepare for trial for 1 hour, 30 minutes and you attend
Court for 6 hours. You have four trips on the Gautrain at R120 per
trip.

Provide your client with an account.

EXERCISE 3

• You represent a client in a business transaction.

• Your hourly tariff is R1 500.00 + VAT.
• Client pays a deposit of R1 500.00.
• You spent 5 hours acting for your client.
• Your total disbursements for inter alia: telephone and cell phone
costs were R100.00.
• The matter has been finalised.

Provide your client with an account.

LEGAL COSTS ©LSSA 87

H. CONTINGENCY FEES AGREEMENT
Contingency Fees Agreement in terms of the Contingency Fees Act No. 66
of 1997 as published in GN R547 in GG 20009 of 23 April 1999.

CONTINGENCY FEES AGREEMENT IN TERMS OF THE

CONTINGENCY FEES ACT 66 OF 1997

Done and entered into between

...............................................................................................................

...............................................................................................................

(full name and address/name of business, full name of authorised representative and
address)
hereinafter called ‘the Client’, and

...............................................................................................................

...............................................................................................................

(Full name of Attorney, name of practice and address)

hereinafter called ‘’the Attorney’,

in terms of which the client shall pay the fees agreed to herein to the Attorney
for services rendered. 2, if the client is successful in such proceedings to the
extent set out in this agreement.

1. It is recorded that in the opinion of the Attorney there are reasonable

prospects that the client may be successful in the proceedings mentioned
hereunder and the Attorney therefore undertakes to recover no fees from
the client unless -
1.1 the client is successful in such proceedings; or
1.2 the Attorney, as set out hereunder, becomes entitled to a fee in the
event of partial success in such proceedings or in the event. of the
premature termination of this agreement.

2. It is further recorded that, before the signing of this agreement and in terms of
Section 3(3) of the Contingency Fees Act, 1997 (Act 66 of 1997), the client was
-
2.1 advised of any other ways of financing the litigation and of their
respective implications, namely
.......................................................;

LEGAL COSTS ©LSSA 88

 2.2 informed of the normal Rule that in the event of the client being
unsuccessful in the proceedings, he/she/it may be liable to pay the
taxed Party and Party costs of his/her/its opponent in the
proceedings; and
2.3 informed that he/she/it will be liable to pay the success fee in the
event of success, by the Attorney.
3. The client acknowledges that he/she/it gave a written Power of Attorney to
the Attorney to -
** conduct proceedings in/before the ……………......................... (Court
of law/ tribunal/functionary) having the power of a Court of law
to ..............................., on his/her/its behalf.
** conduct proceedings in/before the .......................................
(Court of law/ tribunal/ functionary) having the power to
................................., on his/her/its behalf.
** render professional services, namely
.............................................., to him/her/it.
** conduct arbitration proceedings in/before the
.................................... for the purpose of
.........................................., on his/her/its behalf.

Nota bene: No contingency fees agreement may be entered into in respect of

professional services to be rendered in any criminal proceedings or any
proceedings in respect of any family law matter.

4. The parties agree that the client -

4.1 shall be deemed to be successful in the aforementioned proceedings
if .................................................; and
4.2 shall be deemed to be partially successful in the aforementioned
proceedings if
..............................................................................

5. The Attorney hereby warrants that the normal fees on an Attorney and own
Client basis to perform work in connection with the aforementioned
proceedings are calculated on the following basis:
.......................................................................................................
.....
(Set out hourly, daily and/or applicable rates)

6. The parties agree that if the client is successful in the aforementioned

proceedings:
** an amount of R........................ shall be payable to the Attorney;

LEGAL COSTS ©LSSA 89

 ** an amount shall be payable to the Attorney, calculated according to
the following method:
..........................................................................

Nota bene: If the success fee is higher than the Attorney’s normal fees, such
higher fee may:
• not exceed the Attorney’s normal fees by more than 100 per cent; and
• in the case of a claim sounding in money, not exceed 25 per cent of the
total amount awarded or any amount obtained by the client in consequence
of the proceedings;
 for purposes of calculating the higher fee, costs are not included.
7. The parties agree that -
7.1 if the client is partially successful in the aforementioned proceedings:
7.1.1 the client
** shall owe the Attorney an amount of R................; or
** shall owe the Attorney an amount to be calculated
according to the following method:
.......................................................; and
7.1.2 the following consequences will follow in terms of this
agreement: .................................................; and
7.2 in the event of the premature termination of this agreement for any
reason:
7.2.1 the client -
** shall owe the Attorney an amount of R...................; or
** shall owe the Attorney an amount to be calculated
according to the following method:
......................................................; and
7.2.2 the following consequences will follow in terms of this
agreement:
………............................................................................

8. Disbursements by the Attorney relating to the matter -

** made on behalf of the client shall be dealt with in the following
manner:
..............................................................................................
..; and/or
** incurred on behalf of the client shall be dealt with in the following
manner:
..............................................................................................

LEGAL COSTS ©LSSA 90

 8.1 The client has a period of 14 days, calculated from the date of signing
this agreement, during which he/she/it will have the right to
withdraw from the agreement by giving notice to the Attorney in
writing.
8.2 The Attorney shall, in the event of withdrawal by the client, be
entitled to fees and disbursements in respect of any necessary or
essential work done to protect the interests of the client during such
period, calculated on an Attorney and Client basis.

9. If the client feels aggrieved by any provision of this agreement or any fees
chargeable in terms of this agreement, the agreement or the fees may be
referred for review to the Legal Practice Council of which the Attorney is a
member and, if an Advocate has been appointed, also to the Bar Council in
the area in which the Advocate practises. The professional controlling body
concerned may set aside any provision of this agreement or any fees
claimable in terms of this agreement if in its opinion such provision or fees
are unreasonable or unjust.
9.1 Any amendment or other agreements ancillary to this agreement
(including any amendments to such agreements) shall be in writing
and comply with the requirements laid down in the Contingency Fees
Act, 1997 (Act 66 of 1997).
9.2 A copy of any such amendment or other agreements ancillary to this
agreement shall be delivered to the client upon the date on which
such amendment or ancillary agreement is signed.

**10. In the event of an Advocate being appointed, the following shall be

completed:
10.1 On this ......... day of .............................. 20..., the Attorney
briefed.................................................................................
............................................................................................
(Full names and address of Advocate)
(Hereinafter called ‘the Advocate’)
to act as Advocate in the proceedings mentioned in paragraph 3
above.
10.2 By his/her signature hereto the Advocate warrants that in his/her
opinion there are reasonable prospects that the client may be
successful in such proceedings and that he/she accepts the brief on
the understanding that he/she will be entitled to the payment of fees
only if the client is successful or partially successful in the
proceedings as agreed upon in paragraph 4 above and in the event
of the premature termination for any reason of this agreement.
10.3 The parties agree that -

LEGAL COSTS ©LSSA 91

 (a) if the client is successful in the aforementioned proceedings:
** an amount of R................: shall be payable to the
Attorney as Advocates’ fees; or
** an amount shall be payable to the Attorney as
Advocates’ fees, to be calculated according to the
following method: ...............................; or
(b) if the client is partially successful in the aforementioned
proceedings:
** an amount of R................. shall be payable to the
Attorney as Advocates’ fees; or
** an amount shall be payable to the Attorney as
Advocates’ fees, to be calculated according to the
following method: ...............................; or
(c) in the event of the premature termination of this agreement
for any reason
** an amount of R................ shall be payable to the
Attorney as Advocates’ fees; or
** an amount shall be payable to the Attorney as
Advocates’ fees, to be calculated according to the
following method: ….................................

THE CLIENT HEREBY WARRANTS THAT HE/SHE/IT UNDERSTANDS THE

MEANING AND PURPOSE OF THIS AGREEMENT.

Signed at ...................... this ................ day of...........................20....

...........................................................
(Signature of the *Client / authorised representative of juristic person)

...........................................................
(Signature of the Attorney)

**.......................................................
(Signature of the Advocate)

* Delete whichever is not applicable

** Delete if not applicable

LEGAL COSTS ©LSSA 92

I. AFFIDAVIT TO BE ANNEXED TO CONTINGENCY FEES
AGREEMENTS

IN THE NORTH GAUTENG HIGH COURT, PRETORIA

(REPUBLIC OF SOUTH AFRICA)

CASE NO: 123/2015

In the matter between:

X PLAINTIFF

and

Y DEFENDANT

AFFIDAVIT TO COURT

I, the undersigned,

hereby declare as follows:

I am an adult female director with the firm ______________________________

of_______________________________, Pretoria.

My firm of Attorneys___________________________________, were appointed

to represent___________________________ (hereinafter referred to as “the
injured), in the abovementioned matter and the facts contained herein fall within
my personal knowledge and are both true and correct.

I, along with various other representatives of the firm ________________ have

assisted the injured and his family in the current claim against the Defendant.

I confirm that the offer was explained and discussed with both the appointed
Curator ad litem of the injured, the injured personally and his family. I believe
the offer to be fair and just under the current circumstances.

I confirm that the matter has become settled on even date, and that a Fee
Agreement was entered into between the injured and his family with

LEGAL COSTS ©LSSA 93

____________________ Attorneys at the onset of the matter and upon
________________Attorneys being instructed.

I confirm that _____________________ Attorney does not enter into a

Contingency Fee Agreement but rather that it renders a full account at the
finalisation of each matter.

The Fee Agreement records that:

1. The fees to be recovered shall not exceed 15%, plus VAT of the damages
recovered, plus Party and Party costs; and
2. Disbursements incurred will bear interest from the date incurred at the
prime overdraft rate charged by ABSA from time to time, __________ (or
such terms as agreed upon in the fee agreement bearing in mind the
requirements of the Contingency Fee Act)
________________________________________________
___________________________________________________________
___________________________________________________________
___________ .

I am therefore satisfied that the matter should be finalised in full and in

accordance with the annexed draft order which is to be made an order of Court.

DATED AT PRETORIA ON THIS THE of ______________20___.

_________________________
DEPONENT

Signed and sworn to before me at Pretoria on this the _____ day of

_____________________ 20___, the deponent having acknowledged
that she understands the contents of the affidavit.

_____________________
COMMISSIONER OF OATHS

LEGAL COSTS ©LSSA 94

J. MAGISTRATES’ COURT TARIFF
APPLICABLE AS FROM: –19 JUNE 2023

LEGAL COSTS ©LSSA 95

LEGAL COSTS ©LSSA 96
LEGAL COSTS ©LSSA 97
LEGAL COSTS ©LSSA 98
LEGAL COSTS ©LSSA 99
LEGAL COSTS ©LSSA 100
LEGAL COSTS ©LSSA 101
LEGAL COSTS ©LSSA 102
LEGAL COSTS ©LSSA 103
LEGAL COSTS ©LSSA 104
LEGAL COSTS ©LSSA 105
LEGAL COSTS ©LSSA 106
LEGAL COSTS ©LSSA 107
LEGAL COSTS ©LSSA 108
LEGAL COSTS ©LSSA 109
LEGAL COSTS ©LSSA 110
LEGAL COSTS ©LSSA 111
LEGAL COSTS ©LSSA 112
LEGAL COSTS ©LSSA 113
LEGAL COSTS ©LSSA 114
LEGAL COSTS ©LSSA 115
LEGAL COSTS ©LSSA 116
K. EXERCISE 4 | BILL OF COSTS: MAGISTRATES’ COURT

IN THE MAGISTRATES‘ COURT FOR THE

DISTRICT WYNBERG HELD AT WYNBERG

Case number: 10/2017

In the matter between:

TODAY
PLAINTIFF

and

TOMORROW
DEFENDANT

FEES AND EXPENDITURE DUE TO MUCH AND MORE, ATTORNEYS FOR

PLAINTIFF AS BETWEEN PARTY AND PARTY (SCALE “B”)

NO DATE DESCRIPTION FEE DISBURSE-

MENTS
1 00/00/00 Taking instructions to sue
00
LEGAL COSTS ©LSSA 117
2 Summons & Particulars of Claim
3 Receive, peruse ad consider Notice of
4 Receive,
Intentionperuse,
to Defendand(1f)
consider Discovery
5 Draft
NoticeDiscovery
(2f) Affidavit (4f)
6 Making copies for service and filing (8p)
7 Attend on service
8 Attend on filing
9 Draft Notice of Intention Lead Expert Evidence
10 Making
(2f) copies for service and filing (4p)
11 Attend on service
12 Attend on filing
13 Necessary consultation with Mr Learner
14 Attend
(75min)consultation with Mr Simpson (Expert)
15 Letter
(60min) to Clerk of the Civil Court (2f)
16 Letter received from Defendant’s Attorneys
17 Preparation
(1f) for trial (30 min)
18 Waiting time at Court before trial (60 min)
19 Court attendance during trial (180 min) – no
20 Court
counselattendance
employed to hear reserved judgment
(30min)
TOTAL FEES
Less taxed off R0.00
Plus, fee for drawing bill
Plus, disbursements
Plus, fee for attending taxation
Plus, VAT on fees, drawing and attending

TOTAL DUE

Taxed and allowed in the amount of

TAXING MASTER

LEGAL COSTS ©LSSA 118

L. EXAMPLE | MAGISTRATES’ COURT ALLOCATION

EXERCISE FEES DISBURSEMENTS

Total R92 000.00 R12 000.00

Less taxed off R10 000.00 R2 000.00
Sub-total R82 000.00 R10 000.00
Plus, 15% VAT on Fees
Plus 11% Drawing Fee R9 020.00
(Min– R234.50)

Plus 15% VAT thereon

Plus Disbursements R10 000.00
Sub-Total R101 020.00
Plus Attending Taxation Fee
(Min – R234.50)

11.00% on First R10 000 R1 100.00

6.00% on Second R10 000 R600.00

3.00% on Balance R2 430.60

Plus VAT Totals
Plus Correspondent’s R0.00
Bill of Costs

TOTAL R105 150.60

TAXED AND ALLOWED IN

THE AMOUNT OF R 105 105.60

TAXING MASTER

LEGAL COSTS ©LSSA 119

M. FORM 26 NOTICE OF INTENTION TO TAX BILL OF
COSTS

IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE DIVISION, CAPE TOWN)

CASE NO ______

In the matter between:

X Plaintiff/ Applicant

and

Y Defendant/Respondent

TAKE NOTICE THAT ....................... (party) intends submitting the attached

Bill of Costs to the Taxing Master at .................................. (place) for taxation.
You may inspect the documents or notes pertaining to any item on the Bill of Costs
at ............................................................. (address) between the hours
of................ (Business hours) for a period of ten (10) days after receipt of this
notice.
You may furthermore file a notice of intention to oppose the taxation within TEN
(10) DAYS after the expiry of the period permitted for the inspection.
In your notice of intention to oppose you shall list all the items on the Bill of Costs
to which you object, and a brief summary of the reason for your objection.
Should you fail to file your notice of intention to oppose within the time specified,
the Bill of Costs will be submitted to the Taxing Master for taxation without
further notice to you.
If you do give notice of intention to oppose within the specified time, you may
at the taxation object to the items specified in your notice of opposition.

DATED at ________on this _______day of ________, 20_____

Attorney for ................................

(Address)

LEGAL COSTS ©LSSA 120

N. QUALIFYING FEES JUDGMENT

THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE DIVISION, CAPE TOWN)

Case No: 27428/10

In the matter between

AD FIRST PLAINTIFF

IB SECOND PLAINTIFF

and

MEC FOR HEALTH AND SOCIAL DEVELOPMENT,

WESTERN CAPE PROVINCIAL GOVERNMENT DEFENDANT

Coram: ROGERS J

Heard: 13 & 17 FEBRUARY 2017

Delivered: 1 MARCH 2017

SECOND SUPPLEMENTARY JUDGMENT

ROGERS J:

Introduction

[1] This supplementary judgment deals with costs. The parties have placed
before me affidavits (including annexures) running to 299 pages and an
agreed bundle of correspondence of 156 pages. The Plaintiffs’ heads of
argument cover 53 pages and the Defendant’s 79 pages. I have also been
given two lever arch files containing the authorities cited in the heads. I
heard argument over two days.

LEGAL COSTS ©LSSA 121

[2] The Defendant did not make a Rule 34 offer. It is thus uncontentious that,
with possible minor exceptions, the Defendant should pay the Plaintiffs’
costs relating to the quantum trial, including:
(i) the costs associated with the Defendant’s conditional counterclaim;
(ii) the costs attendant on the employment of two Counsel; and
(iii) the preparation and qualifying costs of the Plaintiffs’ experts. The
Defendant submits that these costs should be on the Party/Party
scale.

[3] The Plaintiffs seek certain special costs orders as follows:

• that the Defendant should be liable for the fees not only of their
Principal Attorney, Mr Joseph (who is based in Johannesburg), but
also of a second Attorney, Mr Ginsberg (who is based in Cape Town);
• that the fees of the said Attorneys should be taxed on the
Attorney/Client scale;
• as to the costs of the Plaintiffs’ main two Advocates (Mr Irish SC and
Ms Munro), that Ms Munro’s fees be allowed at two-thirds of the fee
allowed for Mr Irish rather than the one- half permitted by Rule
69(2);
• that the Defendant should be liable for the reasonable fees charged by
three further Advocates, Mr P de Waal SC (who was involved in drafting
the trust deed) and Mr Marcus SC and Ms Pillay (who were engaged to
argue the trust issues).

(1) The Plaintiffs’ application dated 7 December 2016 for orders directing that
the secret offer of 31 October 2013 and the costs affidavit of Mr Joseph
dated 6 December 2016 be admissible as evidence is granted with costs,
including those attendants on the employment of two Counsel.
(2) The Defendant shall pay the Plaintiffs’ costs in respect of the Defendant’s
application for the introduction of the conditional counterclaim, including
the costs of Mr Joseph’s answering affidavit dated 18 June 2015 and the
costs attendant on the employment of two Counsel.
(3) The Defendant shall pay the Plaintiffs’ costs in respect of the claims in
convention and reconvention, including, subject to (4) below, the costs of
two Counsel, and including the costs relating to argument on costs, but
excluding the costs of three trial days (being the days taken up with the
evidence of Dr Versfeld and Prof Dunn).
(4) The costs allowed in respect of Counsel shall include the reasonable costs
of preparing heads of argument on the claims in convention and
reconvention and heads of argument on costs.
(5) The Plaintiffs shall be entitled to the costs of three Counsel for the
preparation of that part of the heads of argument in (4) above dealing with
LEGAL COSTS ©LSSA 122
 the trust and shall be entitled to the costs of the appearance of a third
Counsel on the last day of argument (12 August 2016).
(6) Although Mr Irish SC and Ms Munro were the Plaintiffs’ main Counsel, the
order allowing the costs of two Counsel may include fees for work
performed by other Counsel (and more particularly Mr P de Waal SC, Mr
Marcus SC and/or Ms Pillay) provided that, save as set out in (5) above,
fees of only two Advocates shall be allowed in respect of any particular
item of work.
(7) Where the fees of one or more Attorneys and/or one or more Counsel
were charged for work done jointly in respect of the present case and the
case in respect of Chelsey Fransman, the fees must, to the extent otherwise
allowed by the Taxing Master, be fairly apportioned between the two cases
and on a 50/50 basis if there is no preferable method of apportionment.
(8) The costs awarded to the Plaintiffs include the reasonable fees charged by
the following experts for the preparation of medico-legal reports and for all
reasonable related attendances, including where applicable consultations,
meetings with opposing experts and the preparation of joint minutes and
attendance at Court:
• Dr G Marus (neurosurgeon);
• Dr MM Lippert (paediatric neurologist);
• Dr L Grinker (psychiatrist);
• Dr S Choonara (urologist) but excluding the costs and attendances
associated with the preparation of his addendum report dated 21
November 2014;
• Dr G Versfeld (orthopaedic surgeon) and the related costs of the
radiology report of Dr Pencharz, but excluding the costs and
attendances of Dr Versfeld subsequent to 29 February 2016;
• Ms P Jackson (physiotherapist);
• Dr R Campbell (rehabilitation specialist);
• Dr P Lofstedt (dentist);
• Dr Maron (ENT surgeon);
• Ms IM Hattingh and Ms E van der Merwe (speech and language
therapists, audiologists and AAC specialists);
• Ms Crosbie (occupational therapist);
• Mr Hakopian (orthotist);
• Mr Rademeyer (mobility expert);
• Mr Eybers (architect);
• Messrs Hope and Warren (quantity surveyors);
• Ms Bubb (educational and Counselling psychologist);

LEGAL COSTS ©LSSA 123

 • Ms Donaldson (industrial psychologist);
• Mr Schussler (economist);
• Dr Strauss (statistician and life expectancy expert);
• Mr G Whittaker (actuary);
• Prof Hofmeyr (ENT surgeon);
• Ms Swart (audiologist).
(9) The costs allowed in respect of Dr Strauss shall include his travel costs
from California to Cape Town (business class), his reasonable
accommodation expenses in South Africa, and his reasonable fees for time
reasonably spent in travelling to and from South Africa and in being in
South Africa to testify.
(10) Save as aforesaid, it shall be for the Taxing Master to decide the extent,
if any, of recoverable travel and accommodation costs for the Plaintiffs’
experts.
(11) The following witnesses are declared necessary witnesses and their
witness fees and travel costs (if any) shall be recoverable in accordance
with the relevant tariff:
• the second Plaintiff;
• Jessica Lundy;
• Samantha de Freitas;
• Sonja Higham;
• Elsabet Bester.
(12) The Taxing Master is authorised and directed to tax the entire Bill of
Costs presented by the Plaintiffs in respect of the costs awarded to them
as set out above. If the amount allowed on taxation for all Attorneys’
fees (including any fees allowed in respect of a Correspondent Attorney
and/or additional Attorney) is equal to or less than R4 536 542, the Taxing
Master shall allow all the Attorneys’ fees so taxed and shall finalise the
taxation.
If the amount allowed on taxation for all Attorneys’ fees is more than
R4 536 542, the Taxing Master shall suspend the finalisation of the
taxation pending this Court’s determination as to whether the Plaintiffs’
Attorneys are, in terms of the contingency fee agreement, entitled to fees
exceeding R4 536 542.
(13) The issue as to whether the capitalised amount awarded in respect of the
trustee’s remuneration is to be included in the award for purposes of
calculating the 25% cap contemplated in Section 2(2) of the Contingency
Fee Act (‘the cap’) stands over for later determination if necessary.
(14) The issue as to whether, and if so how, the cap and the trustee’s
remuneration are to be calculated in light of the fact that the calculation of

LEGAL COSTS ©LSSA 124

 each is dependent on the calculation of the other stands over for later
determination if necessary.
(15) If, pursuant to 13 and 14 above, it is determined that the capitalised
amount of the trustee’s remuneration is to be included in calculating the
cap, the issue as to whether a pro rata share of irrecoverable legal costs
and fees should be deducted from the said capitalised amount in arriving
at the opening credit to the separate account to be maintained for the
trustee’s remuneration in terms of clause 10.3 of the trust deed, stands
over for later determination if necessary.

LEGAL COSTS ©LSSA 125

O. HIGH COURT TARIFF – 19 JUNE 2023
The Government Gazette No.48571 is available free online at
www.gpwonline.co.za
(Government Printing Works)

TARIFF OF FEES OF ATTORNEYS

A - CONSULTATIONS, APPEARANCES, CONFERENCES AND INSPECTIONS

1. Consultation with a client and witnesses to institute or to defend an action, for advice
on evidence or advice on commission, for obtaining an opinion or an advocate’s
guidance in preparing pleadings, including exceptions, and to draft a petition or
affidavit, per quarter of an hour or part thereof—
(a) by an attorney (R357,00) R388,00
(b) by a candidate attorney (R111,50) R120,50

2. Consultation to note, prosecute or defend an appeal, per quarter of an hour or part

thereof—
(a) by an attorney (R357,00)R388,00
(b) by a candidate attorney (R111,00)R120,50

3. Attendance by an attorney in court at proceedings in terms of rule 37 of these Rules,

per quarter of an hour or part thereof (R357,00)R388,00

4. (a) Attendance by an attorney, where necessary, to assist at a contested proceeding,

per quarter of
an hour or part thereof R388,00
(b) Attendance by a candidate attorney, where necessary, to assist at a contested
proceeding, per quarter of an hour or part thereof (R111,00)R120,50

5. Any conference with an advocate, with or without witnesses, on pleadings, including

exceptions and particulars to pleadings, applications, petitions, affidavits and
testimony, and on any other matter which the taxing officer may consider necessary,
per quarter of an hour or part thereof—
(a) by an attorney (R357,00)R388,00
(b) by a candidate attorney (R111,00)R120,50

6. Any other conference which the taxing officer may consider necessary, per quarter
of an hour or part thereof—
(a) by an attorney (R357,00)R388,00
(b) by a candidate attorney (R111,00)R120,50

7. Any inspection in situ, or otherwise, per quarter of an hour or part thereof—

(a) by an attorney (R357,00)R388,00
(b) by a candidate attorney (R111,00)R120,50

8. Attending to give or take disclosure, per quarter of an hour or part thereof—

(a) by an attorney (R357,00)R388,00
(b) by a candidate attorney (R111,00)R120,50

LEGAL COSTS ©LSSA 126

9. Inclusive fee for necessary consultations and discussions with a client, witness, other
party or advocate not otherwise provided for, per quarter of an hour or part thereof—
(a) by an attorney (R357,00)R388,00
(b) by a candidate attorney (R111,00)R120,50

10. Appearance by an attorney in court or the performance by an attorney of any of the

other functions of an advocate, in terms of the Legal Practice Act, 2014 (Act 28 of
2014) The tariff under rule 69 shall apply.

11. The rates of remuneration in items 1 to 9 do not include time spent travelling
or waiting and the taxing officer may, in respect of time necessarily so spent, allow
such additional remuneration as he or she in his or her discretion considers fair and
reasonable, but not exceeding (R357,00)R388,00 per quarter of an hour or part
thereof in the case of an attorney and (R111,00)R120,50 per quarter of an hour or
part thereof in the case of a candidate attorney plus a reasonable amount for
necessary conveyance.

B - DRAFTING AND DRAWING

1.The drawing up of a formal statement in a matrimonial matter, verifying

affidavits, affidavits of service or other formal affidavits, index to brief, short brief,
statements of witnesses, powers of attorney to sue or defend, as well as other formal
documents and summonses, including all documents such as the prescribed forms in
the First Schedule to these Rules, but not the particulars of claim in an annexure to
the summons: an inclusive tariff - drawing up, checking, typing, printing, delivery and
filing thereof, per page of the original only (R144,00)R156,50

2. The drawing up of other necessary documents, including—

(a) instructions for an opinion, for an advocate’s guidance in preparing
pleadings, including further particulars and requests for same, including
exceptions;
(b) instructions to advocate in respect of all classes of pleadings;
(c) a petition, exception or affidavit, any notice (except a formal notice),
particulars of claim or an annexure to the summons, opinion by an
attorney or any other important document not otherwise provided for,
an inclusive tariff - drawing up, checking, typing, printing, delivery and
filing thereof, per page of the original only (R357,00)R388,00

3. Letters, facsimiles and electronic mail: Inclusive tariff for drawing up,
checking, typing, printing, scanning, delivery, postage, posting and
transmission thereof, per page (R144,00)R156,50

NOTE 1: Particulars of dispatched letters (telegrams and facsimiles) including letters

electronically transmitted need not be specified in a bill of costs. The number of letters
written must be specified, as well as the total amount charged. The opposing party, as
well as the taxing officer, is entitled to inspect the papers should the correctness of the
item be disputed.

NOTE 2: Whenever an attorney performs any of the work listed in this section, the fees
set out herein in respect of such work shall apply and not any fees which would be

LEGAL COSTS ©LSSA 127

applicable in terms of the tariff under rule 69 if an advocate had performed the work in
question.

C - ATTENDANCE AND PERUSAL

1. Attending the receipt, entry, perusing, considering and filing of—

(a) any summons, petition, affidavit, pleading, advocate’s advice and drafts,
report, important letter, notice or document;
(b) any formal letter, record stock sheets in voluntary surrenders, judgments
or any other material document not elsewhere specified;
(c) any plan or exhibit or other material document which was necessary for
the conduct of the action, per page (R72,00)R78,00

2. Sorting, arranging and paginating papers for pleadings, advice on evidence

or brief on trial or appeal, per quarter of an hour or part thereof—
(a) by an attorney (R357,00)R388,00
(b) by a candidate attorney (R111,00)R120,50

NOTE: Particulars of received papers need not be specified in bills of costs. The number
of papers and pages received, as well as the total amount charged therefor, must be
specified. The opposing party as well as the taxing officer is entitled to inspect the papers
received if the correctness of the item is disputed.

D - MISCELLANEOUS

1. For necessary copies, including photocopies, of any document or papers not already
provided for in this tariff, per A4 size page (R5,00) R6,00

2. Attending to arrange translation and thereafter to procure same, per quarter of an

hour or part thereof—
(a) by an attorney (R357,00)R388,00
(b) by a candidate attorney (R111,00)R120,50

3. Necessary telephone calls: The actual cost thereof, plus for every five minutes
or part thereof—
(a) by an attorney (R119,00)R130,00
(b) by a candidate attorney (R37,0)R40,00
4. …

5. Testimony: Fair and reasonable charges and expenses which in the opinion of the
taxing officer were duly incurred in the procurement of the evidence and the attendance
of witnesses whose witness fees have been allowed on taxation: Provided that the
preparation fees of a witness shall not be allowed without an order of the court or the
consent of all interested parties.

E - BILL OF COSTS

In connection with a bill of costs for services rendered by an attorney, the attorney shall
be entitled to charge—

1. For drawing the bill of costs, making the necessary copies and attending settlement,

LEGAL COSTS ©LSSA 128

 11 per cent of the attorney’s fees, either as charged in the bill, if not taxed, or as
allowed on taxation.

2. In addition to the fees charged under item 1, if recourse is had to taxation for
arranging and attending taxation and obtaining consent to taxation, 11 per cent on
the first R10 000,00 or portion thereof, 6 per cent on the next R10 000,00 or portion
thereof and 3 per cent on the balance of the total amount of the bill.

3. (a) Whenever an attorney employs the services of another person to draft his or her
bill of costs, a certificate shall accompany that bill of costs in which that attorney
certifies that—

(i) the bill of costs thus drafted was properly perused by him or her and found to
be correct; and
(ii) every description in such bill with reference to work, time and figures is
consistent with what was necessarily done by him or her.

(b) The taxing officer may—

(i) if he or she is satisfied that one or more of the requirements referred to in

item 3(a) has not been complied with, refuse to tax such bill;

(ii) if he or she is satisfied that fees are being charged in a party-and-party bill
of costs—

(aa) for work not done;

(bb) for work for which fees are to be charged in an attorney-and-client bill of
costs; or
(cc) which are excessively high,

deny the attorney the remuneration referred to in items 1 and 2 of this section, if more
than 20 per cent of the number of items in the bill of costs, including expenses, or of the
total amount of the bill of costs, including expenses, is taxed off.

NOTE: The minimum fees under items 1 and 2 shall be (R284,00)R309,50 for each
item.

F - EXECUTION

1. Drafting, issue and execution of a warrant of execution and attendances in connection

therewith, excluding sheriffs fees (if not taxed) (R710,00)R772.00
2. Reissue (R179,00)R194.00

[R 70 am by GoN R3553 in G. 2543 wef 1 November 1969, GoN R2365 in G. 5804 wef 18 November 1977;
subs by GoN 2170 in G. 8405 wef 6 October 1982, GoN R1262 in G. 13283 wef 1 July 1991; am by GoN R974
in G. 14851 wef 1 July 1993, GoN R2365 in G. 15322 wef 10 January 1994, GoN R1557 in G. 17444 wef 21
October 1996, GoN R1755 in G. 25795 wef 5 January 2004, GoN R516 in G. 32208 wef 15 June 2009, GoN
R500 in G. 33273 wef 16 July 2010, GoN R759 in G. 36913 wef 15 November 2013, GoN R31 in G. 38399 wef
24 February 2015, GoN R781 in G. 39148 wef 2 October 2015, GoN R1055 in G. 41142 wef 1 November 2017,
GoN R1318 in G. 42064 wef 10 January 2019, GoN R858 in G. 43592 wef 11 September 2020, GoN R1157 in
G. 43856 wef 1 December 2020, GoN R2133 in G. 46475 wef 8 July 2022, GoN R3397 in G. 48571 wef 19 June
2023.]

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 HIGH COURT TARIFFS
05.12.20
DATE 03- 15.062009- 16.07.2010- 15.11.2013- 24.02.2015- 01.11.2017- 11.09.2020- 08.07.2022-
14.06.20
09 15.07.2010 14.11.2014 23.02.2015 31.10.2017 10.09.2020 07.07.2022 18.06.2023
15
Consultation, min 125.00 177.50 213.00 235.00 263.00 292.50 328.00 357.00
Appearances, etc 1h 500.00 710.00 852.00 940.00 1052.00 1170.00 1312.00 1428.00

15
Candidate min 38.00 54.00 65.00 72.00 81.00 90.50 102.00 111.00
Attorney

Drafting:
Pleadings, Page 125.00 177.50 213.00 235.00 263.00 292.50 328.00 357.00
Affidavits
Letters, notices Page 50.00 71.00 85.00 94.00 105.50 117.50 132.00 144.00
formal documents

Perusal Page
25.00 35.50 43.00 47.00 53.00 59.50 66.50 72.00

Copies Page
1.25 1.80 2.00 2.50 3.50 4.00 4.50 5.00

Tele-phone Per 41.66 59.17 71.00 78,35 88.00 98.00 109.00 119.00
calls 5min

Execution 652.50 710.00

Tariffs amended per Government Gasette 48571 of 12 May 2023..

These rules come into operation on 19 June 2023.

LEGAL COSTS ©LSSA 130

P. EXERCISE 5 | BILL OF COSTS: HIGH COURT

IN THE HIGH COURT OF SOUTH AFRICA HELD AT WYNBERG

(WESTERN CAPE DIVISION, CAPE TOWN)

Case number: 123/2017

In the matter between:

TODAY
PLAINTIFF

and

TOMORROW
DEFENDANT

FEES AND DISBURSEMENTS DUE TO PLAINTIFF’S ATTORNEYS

NO DATE DESCRIPTION FEE DISBURSEMENTS

1 00/00/0000 Consultation with Plaintiff (2h)

2 Drawing Combined Summons (2p)
3 Drawing Particulars of Claim (4p)
4 Making copies of Summons for service and to
keep (12p)
5 Attend to stamp Summons (R0)
6 Attending Registrar to issue Summons (CA)
(15 min)
7 Perusing return of service and Sheriff’s
account (1p)
8 Letter and payment to Sheriff (R113.00)
9 Perusing Notice of Intention to Defend (2p)
10 Drawing Notice of Bar (1p)
11 Receive and peruse Defendant’s Plea (7p)
12 Receive and peruse Registrar’s Notice i.t.o
Rule 37A – date (1p)

LEGAL COSTS ©LSSA 131

 13 Travel to Cape Town and back to Somerset
West to attend Rule 37 meeting (100 km)
14 Travelling time (90 min)
15 Appearance at Rule 37 meeting (45 min)
16 Drawing Notice of Set Down (2p)
17 Index and paginate Court file (30 min) CA
18 Drawing Subpoena – Mr Skosana (2p)
19 Telephone call to Counsel – not available
(1 min)
20 Telephone call to Counsel – discuss merits
(16min)
21 Attending consultation with Plaintiff and
Counsel (2h)
22 Attending Court at hearing on 24/04/2016
(5h)
23 Attending inspection in situ (CA) (1h)
24 Receive and peruse Order of Court (10p)

TOTAL FEES R0
Less taxed off
Plus, fee for drawing bill (11% of fees)
allowed)
Plus, disbursements
Plus, fee for attending taxation
Plus, VAT on fees, drawing and attending

TOTAL DUE

Taxed and allowed in the amount of

TAXING MASTER

LEGAL COSTS ©LSSA 132

Q. EXERCISE 6 | HIGH COURT ALLOCATION

Exercise Fees Disbursements

Total R495,000.00 R238,750.00
Less taxed off R 45,000.00 R 38,750.00
Sub-total
Plus, drawing fees (11%)
Plus, disbursements
Sub-total
Plus attending fee
11% @ 10 000
6% @ 10 000
3% @ balance
Plus, VAT on fees (15%)
Drawing fee (15%)
Attending fee (15%)
TOTAL

TOTAL R495,000.00 R238,750.00

Less taxed off R 45,000.00 R 38,750.00
SUB-TOTAL
Plus, drawing fees
Plus, disbursements
SUB-TOTAL
Plus attending fee
11% @ 10 000
6% @ 10 000
3% @ balance
Plus, VAT on fees (15%)
Drawing fee (15%)
Attending fee (15%)
TOTAL

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R. EXAMPLE | ALLOCATUR IN THE HIGH COURT

Complete the following allocatur in the High Court. You are VAT registered.

R150 R400
SUBTOTAL
000,00 000,00

LESS TAXED OFF R25 000,00 R50 000,00

R125 R350
SUBTOTAL
000,00 000,00
PLUS 15% VAT ON FEES R18 750,00
PLUS 11.00% DRAWING
R13 750,00
FEE (MIN - R234.50)
PLUS 15% VAT THEREON R2 062,50

PLUS, DISBURSEMENTS R350 000,00

R488
SUBTOTAL
750,00
PLUS ATTENDING
TAXATION FEE (MIN -
R234.50)
11.00% ON FIRST
R1 100,00
R10,000.00
6.00% ON SECOND
R600,00
R10,000.00
3% ON BALANCE R14 062.50

PLUS 15% VAT THEREON R2 364.38

PLUS, VAT TOTALS R23 176.88

PLUS, CORRESPONDENT'S
BILL OF COSTS
R527 689.3
TOTAL
8

TAXED AND ALLOWED IN

R527 689.3
THE AMOUNT OF R
8

TAXING MASTER

LEGAL COSTS ©LSSA 134

 S. SUPREME COURT OF APPEAL TARIFF

AS APPLICABLE FROM 19 JUNE 2023

Substitution of rule 18 of the rules

2. The following rule is hereby submitted for rule 18 of the rules:

“Attorneys’ fees

18. The following fees shall be allowed to attorneys conducting appeals or

other matters before the Court.

A TAKING INSTRUCTIONS
1. (a) To note an appeal or cross-appeal when leave to appeal is not
required per quarter of an hour-
(i) by an attorney (R357,00)R388.50
(ii) by a candidate attorney (R111,00)R121.00

(b) To prosecute or defend an appeal, including continuation of a

cross-appeal per quarter of an hour –
(i) by an attorney (R357,00)R 388.50
(ii) by a candidate attorney (R111,00)R 121.00

(c) To make or oppose an application per quarter of an hour

(i) by an attorney (R357,00)R388.50
(ii) by a candidate attorney (R111,00)R121.00

2. To draft any application or affidavit per page (R143,00)R155.50

B PREPARATION OF RECORDS

1. Making, for the purpose of preparing copies of the record on appeal (except
where a charge is made under paragraph 5 hereof),a copy of such
particulars of record not in possession of the appellant or his or her attorney
at the time of the order appealed from, was made (R5,00)R6.00

2. Arranging record for printing or typing and preparing an index and list of
documents not included in the record of appeal per quarter of an hour
(i) by an attorney (R357,00)R388.50
(ii) by a candidate attorney (R111,00)R121.00

3. Correcting typed copy per quarter of an hour per quarter of an hour

(i) by an attorney (R357,00)R388.50
(ii) by a candidate attorney (R111,00)R121.00

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4. Attending at the office of the registrar or officer of the court appealed
from to peruse or authenticate the record per quarter of an hour
(i) by an attorney (R357,00)R388.50
(ii) by a candidate attorney (R111,00)R121.00

5. Copy of record on appeal and heads or argument per page (R5,00)R 6.00

C PERUSAL

1. (a) Perusing judgment of court a quo when taking instructions for

continuation of an appeal or cross-appeal, where leave to appeal
is not required (R72,00)R 78.50

(b) Perusing record of appeal per page (R7,50)R9.50

(c) Perusing judgment of court a quo when taking instructions to apply

for leave to appeal, where leave to appeal was denied per page
(R7,50)R9.50

2. Perusing any plan, diagram, photograph or other annexure to the record

not specifically provided for herein per page (R72,00)R78.50

3. Attendance on and perusal of application, affidavit or any other document

not specifically provided for in C per page (R72,00)(R 78.50

(b) Attendance on and perusal of annexure to an application or

answering affidavit per page (R7,50)R 9.50

(c) Attendance on and perusal of application or affidavit composed or

corrected by council per page (R18,00)R 20.00

4. Attendance on and perusal of heads of argument, excluding. annexures

per page (R72,00)(R 78.50

D ATTENDANCE

1. Formal attendance on an acknowledgement, receipt etc(R72,00)(R78.50

2. Attendance on any letter or document (R72,00)(R 78.50

(b) Necessary telephone calls made, excluding the actual costs

thereof per 5 min*
(i) by an attorney (R119,00)R130.00
(ii) by a candidate attorney (R37,00)R40.00

LEGAL COSTS ©LSSA 136

 (c) Attendance on telephone calls, excluding the actual costs thereof
per 5 min*
(i) by an attorney (R119,00)R130.00
(ii) by a candidate attorney (R37,00)R40.00

3. Attendance at the office of the registrar to deliver a letter or document or

uplift an order per 15 min*
(i) by an attorney (R357,00)R388.50
(ii) by a candidate attorney (R111,00)R121.00

(b) Attendance on business, other than formal business per 15 min*

(i) by an attorney (R357,00)R388.50
(ii) by a candidate attorney (R111,00)R121.00

4. Attendance at any consultation with counsel or client per 15 min*

(i) by an attorney (R357,00)R388.50
(ii) by a candidate attorney (R111,00)R121.00

(b) Attendance, obtaining and payment to counsel for noting of

judgement – comprehensive fee
(i) by an attorney (R357,00)R388.50
(ii) by a candidate attorney (R111,00)R121.00

5. Attendance at court to note judgement Per 15 min*

(i) by an attorney (R357,00)R388.50
(ii) by a candidate attorney (R111,00)R121.00

6. Attendance at court on hearing of appeal or application per 15 min*

(i) by an attorney (R357,00)R388.50
(ii) by a candidate attorney (R111,00)R121.00

E DRAWING UP OF DOCUMENTS

1 Any application or affidavit per page (R143,00)R 155.50

2. Instructions to counsel on appeal per page (R143,00)R 155.50

(b) Instructions to counsel on application per page(R143,00)R 155.50
(c) Instructions to counsel for drawing up or correction application or
affidavit for an application for leave to appeal or disputing thereof
per page (R143,00)R 155.50

3. Notice of appeal or other necessary notices per page(R143,00)R 155.50

4. Letters, including copy to keep per page (R143,00)R 155.50

LEGAL COSTS ©LSSA 137

5. Power of attorney per page (R143,00)R 155.50

6. Short brief to counsel Per page (R143,00)R 155.50

7. Bond of security Per page (R143,00)R 155.50

F COPYING

Any documents not specifically provided for per page (R5,00)R 6.00

G BILL OF COSTS

1. Drawing up, making necessary copies and attending to settlement.

(Calculated on Attorney’s fees portion only) 11.00%

2. Arranging and attending taxation. (Calculated on the total amount of the

bill)
(i) First R 10 000.00 or portion thereof 11.00%
(ii) Second R 10 000.00 or portion thereof 6.00%
(iii) Balance of the bill 3.00%

Commencement

3. These rules come into operation on 19 June 2023.

LEGAL COSTS ©LSSA 138

T. TARIFF OF ALLOWANCES PAYABLE TO WITNESSES
IN CIVIL CASES

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U. COURT CASE | SALEMANE AND 2 OTHERS V SETSOTO
LOCAL MUNICIPAILTY CASE NO. 1356/2020

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V. SOUTH AFRICAN LEGAL PRACTICE COUNCIL CODE OF
CONDUCT

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W. CONTINGENCY FEES ACT NO. 66 OF 1997

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 _______________________________

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