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The scales of justice, or perhaps just of costs - Rule 67A.

SA Court Rules
Apr 24, 202430 min read

Updated: Jun 3, 2024

*This post will be periodically updated as further decisions on rule 67A are published

 

The taxation of bills of costs in the High court has had a bit of a shake up with the introduction of rule 67A and the amendments to rule 69, both of which came into effect on 12 April 2024. Rule 67A is simply titled "Costs" and rule 69 has a makeover from "Tariff of Maximum Fees for Advocates on Party and Party Basis in certain Civil Matters" to "Tariff of fees for legal practitioners who appear in the Superior Courts".


The existing rule 70 pertaining to the tariff to be applied to the Taxation and Tariff of Fees of Attorneys remains. The change pertinent to attorneys is that the work undertaken by attorneys may now be subject to the provisions of rule 69 too where they appear in the high court. The cross pollination of rules does not end there however, with advocates now being subject to the tariff applicable under rule 70 where they have undertaken the work of attorneys as permitted by section 34(2)(a)(ii) of the Legal Practice Act, 2014.


Section 34(2)(a)(ii) of the Legal Practice Act



The main aspect to be considered in this note is the new concept of the court having to determine what scale of costs is to be applied to a party and party bill of costs in respect of the work undertaken by counsel or attorneys appearing in the high court. Rule 67A(1) makes it clear that the rule applies to cost orders made on the party and party scale. The rule may therefore be ignored in the case of an order sought or made for attorney and client or attorney and own client costs.


What does the rule actually say:

Rule 67A - Costs

Rule 69 Tariff of fees for legal practitioners who appear in the Superior Courts


Discussion

The court is now given direction as to how to exercise its discretion in awarding costs in favour of, or against, a litigant.


In terms of rule 67A(2) the court may have regard to the provisions of rule 41A (Mediation as a dispute resolution mechanism), the failure by any party or such party’s legal representation to comply with the provisions of rules 30A (Non-compliance with Rules and Court Orders); 37 (Pre-trial conference) and 37A (Judicial Case Management).


The other factors provided for are:

  • unnecessary or prolix drafting, unnecessary annexures and unnecessary procedures followed;

  • unnecessary time spent in leading evidence, cross examining witnesses and argument;

  • the conduct of the litigation by any party’s legal representative and whether such representative should be ordered to pay such costs in his or her personal capacity; and

  • whether the litigation could have been conducted out of the magistrate’s court.


The main implications for counsel and attorneys who either appear in the high court or who brief counsel are set out in rule 67A(3). In making an order for costs the court is required to indicate the scale of costs which are to be applied to the matter. The scales are set out in rule 69(7) as follows:


Scale A

Scale B

Scale C

R 375,00 per quarter of an hour or part thereof (maximum allowed)

R 750,00 per quarter of an hour or part thereof (maximum allowed)

R 1 125,00 per quarter of an hour or part thereof (maximum allowed)

It should be borne in mind that these scales represent the maximum amount permitted in each bracket and so where for example an advocate renders a fee for R 2 000,00 for an appearance of one hour, and an order for costs on the party and party scale is made in favour of the party employing that advocate limiting the scale to scale B, this would mean that the amount recoverable would still be R 2 000,00 and not R 3 000,00. In each instance the maximum recoverable amount, per hour, is:


  • Scale A: R 1 500,00;

  • Scale B: R 3 000,00;

  • Scale C: R 4 500,00.


The hourly rate is important to consider, as certain types of work specified in the tariff, for example "Appearances in court: unopposed applications" are subject to a minimum fee of one hour, and thereafter per quarter of an hour.


The factors to be considered in determining which scale should be awarded are limited to just three considerations - the complexity of the matter, the value of the claim or the importance thereof. This determination will only apply to determining whether the order ought to be on scale B or C, as A is the default position. Should an order not indicate a scale, it will be on scale A. What is meant by complexity of the matter should be self explanatory, any person who has litigated a matter knows without doubt whether it is complex or not, and where there is doubt regarding complexity it is surely not complex. What factors will distinguish between a moderately complex matter, one justifying an award in terms of scale B and an extremely complex matter, justifying scale C will no doubt be clarified by the courts in due course.


It should however be assumed at this stage that the majority of unopposed motion court applications will not justify anything other than scale A, unless they require the determination of some unusual or novel aspect of law or, for example, perhaps the interpretation of a new rule. Scale B and C will in all likelihood be reserved for opposed matters and trials where the resolution of issues of fact and law are likely to be more complex, however elementary opposed applications or trials where the factual disputes to be resolved are simple, will probably still attract orders in terms of scale A. Whereas a trial running for many days, involving the sifting of disputed technical expert evidence between several parties and witnesses over various competing agreements, is more likely to be of a complex nature justifying an award of scale C.


The value and importance of a claim are further fairly self explanatory, although a matter where the claim is vast may still be simple with regards to the issues to be determined. The importance of the relief sought is the most vague of the factors, undoubtedly the majority of litigants regard the relief which they seek as being of great importance to them individually and so this surely cannot be the test. Matters of Constitutional relevance and public interest or administrative law matters affecting large groups of the public are clearly important to the public as a whole and so would probably be one form of litigation which the rules board had in mind. Whether this would include matters involving litigation to resolve the best interests of minor children or for the interests of a third party may be a further consideration.


Further factors which may be included in a costs order are those portions of the matter which are considered urgent, it is however unspecified as to how this will affect the order, for example if the whole of the matter is considered as being urgent will the litigant be entitled to scale C on that basis? The import of this consideration is not elaborated on in rule 69(8) - the tariff of fees applicable to legal representatives appearing in the High Court, as urgent applications as a species of work are not separately dealt with in this sub-rule.


Orders must further specify whether costs are to be allowed for more than one counsel or attorney having right of appearance in the High Court. The order must, once again, indicate the scale on which these costs are awarded. Rule 69 provides that costs for more than one practitioner will not be permitted unless the court orders otherwise. The court must also determine on what scale these costs shall be allowed. It is however hard to imagine a scenario in which a matter would be deemed sufficiently complex to permit the appearance of more than one practitioner but for the scale of costs to be determined at anything other than scale B or C.


Relevant cases

Summary:




"For all legal services pertaining to this application rendered by Counsel after the 12th of April 2024, the costs of Senior Counsel shall be taxed on Scale C and that of Junior Counsel shall be taxed on Scale B of Rule 69(7) of the Uniform Rules of Court."









Extracts


"Rule 67A

 

[3]   Costs orders in civil proceedings are made on one of two scales: the “party and party” scale, or the “attorney and client” scale. A costs award on the party and party scale allows the person in favour of whom it is made to recover the costs they had to incur in bringing or defending a civil suit, but only to the extent allowed by a set of tariffs designed to keep recoverable costs within reasonable limits. Those tariffs rarely keep pace with the actual cost of legal services, meaning that a party and party costs order seldom permits the recovery of the legal costs really incurred by the party in favour of whom it is made.

 

[4]   Attorney and client costs orders, on the other hand, allow the party to whom they are awarded to recover an amount much closer to the actual costs of the legal services they purchased to participate in the suit. These orders are generally made against a party that has misconducted themselves in the course of the litigation; against a party that has brought a suit or raised a defence which was so devoid of merit as to be a waste of the court’s time; or against a party who has agreed that, if they are successfully sued in a particular set of circumstances, they will pay costs on the attorney and client scale. However, the amounts recovered under an attorney and client order must still, in the opinion of the taxing master, have been reasonably incurred, meaning that even an attorney and client costs order might not reimburse a litigant for everything they spent.

 

[5]   Rule 67A addresses itself only to awards of costs as between party and party. Its purpose is to permit a court to exercise control over the maximum rate at which counsel’s fees can be recovered under such an award. “Counsel” in this context should be understood to mean any legal practitioner, whether a referral advocate, a trust account advocate or an attorney with higher appearance rights, who actually does the work of counsel. The focus is accordingly on assigning a maximum value that may be recovered in respect of the work done in the presentation of the case before court. The professional affiliation of the person undertaking the work does not matter.

 

[6]   The court sets a maximum recoverable rate for that work having regard to the importance, value and complexity of the matter (Rule 67A (3) (b)). The court may also take into account any failure to observe the provisions of rules 30A, 37, 37A and 41A; any over-long written argument, oral argument, examination or cross-examination of witnesses;  or any other misconduct that might justify a personal costs order (a costs order made against a person other than one of the litigants – usually a legal representative, or someone else acting in an official capacity, who has seriously misconducted themselves).  It may also be relevant that the case fell within the jurisdiction of the Magistrate’s Court, and might have been better determined there. Rule 67A (2) identifies these considerations, and emphasises their relevance to the making of a costs order under the rule.

 

[7]   Rule 67A (3) provides that a court “shall”, when making a party and party costs order, “indicate the scale in terms of rule 69, under which costs have been granted”. Those scales have been inserted into rule 69 (7) under the amendment that created rule 67A. They are scales “A”, “B”, and “C”. They set the maximum rate at which counsel’s fees may be recovered on a party and party bill. Scale “A” provides a maximum tariff of R375 per quarter hour; scale “B” sets a maximum tariff of R750 per quarter hour; and scale “C” sets a maximum  tariff of R1125 per quarter hour.

 

[8]   Rule 67A (3) (c) states that if a court declines to indicate a scale in its order, the lowest scale – scale “A” – applies.

 

[9]   Rule 67A (4) provides for the right to apply for an order determining which parts of the proceedings, if any, were urgent, and whether the costs of more than one counsel may be recovered. The effect of that subrule is, notionally, that a different scale could be assigned to the services of each counsel whose fees are allowed under the rule. Given that each of the parties in this case was represented only by one counsel, I leave open the question of whether, when and how such an order should be made.

 

[10]   Rules 67A (1), (5) and (6) instruct the taxing master on the performance of their duties under the new rule.

 

[11]   It seems to me, therefore, that the approach to setting a scale of costs under Rule 67A (3) should be, first, to identify the appropriate scale (“A”, “B” or “C”) in light of the importance, value and complexity of the case, and then consider whether, because of inartful or unethical conduct of the nature identified in Rule 67A (2), that scale should be reduced, such that the successful party should not be able to recover counsel’s costs to the extent that they would otherwise have been entitled.


The application of the rule to pending cases

 

[12]   It seems to me that the 12 April 2024 amendments can only apply prospectively. This means that a costs order under Rule 67A (3) should be made on cases instituted before 12 April 2024 but heard thereafter. The scale nominated in the order will only apply to work done on the matter after 12 April 2024. Take, for example, a motion instituted in 2023, in which written argument was filed in January 2024, and in which oral argument was presented on 15 April 2024. A party and party costs order on the “C” scale is made on 15 April 2024. The “C” scale will only apply to counsel’s preparation and attendances (if they are otherwise recoverable) after 12 April 2024, to the appearance itself, and to any recoverable post-hearing attendances. Fees for work done before 12 April 2024 will be recoverable under the rules applicable to the taxation of counsel’s costs as they were then.

 

[13]   To hold otherwise would either fail to give effect to the rule, or retrospectively revalue legal services purchased under a different dispensation and structure of expectations. Neither of these alternatives is desirable.


The application of Rule 67A to this case

 

[14]   Despite its brevity, Rule 67A contains a potentially sophisticated mechanism for placing a value on advocacy. Although it has no direct impact on what counsel will be able to recover from their attorney or client, it has the potential to send a message to the parties about the importance of their case, and how artfully and ethically counsel for the winning side has pressed the case entrusted to them. When setting a scale under the rule, a court will generally be careful to say whether its decision has been influenced only by the nature or complexity of the matter, or also by the way the case was presented to it.

 

[15]   It also seems to me that the rule implies that the power to reduce the scale on which counsel’s costs are awarded should be exercised sparingly, and only where a case for its exercise has been made out. A Judge generally approaches a case on the assumption that it has been competently litigated, that counsel has done what is within their power to ensure substantial compliance with the applicable rules, and that argument and evidence has taken as long as it needs to take. It is only where there has been a marked departure from these norms that a court should consider lowering the scale on which counsel’s costs are awarded.

 

[16]   Likewise, the default position set under the rule is that, in the absence of contrary indication,  counsel’s costs will be recovered on scale “A”. Scale “A”, it seems to me, is the appropriate scale on which to make an award unless the application of a higher scale has been justified by careful reference to clearly identified features of the case that mark it out as unusually complex, important or valuable. Run-of-the-mill cases, which must be the vast majority of cases in the High Court, should not attract an order on the B or C scales.


...


[19]   There mere fact that punitive costs were sought by the successful party does not mean that a higher scale of counsel’s costs ought to be awarded on the party and party scale. The focus of Rule 67A is not on the conduct of the losing party. It is primarily on the nature of the case, and, secondarily, on the way that the successful party presented it. The misconduct of the unsuccessful party, if any, is irrelevant once a court has declined to award a punitive costs order against them.


...


[26]   Twelve years after the judgment in Camps Bay, these levels of remuneration remain unimaginable to all but a tiny minority of the most privileged in our society. They are handsome rewards for long hours of sometimes very hard work in matters that can be forensically challenging. But when Judges are required to assign a maximum recoverable value to counsel’s work, which is what rule 67A now requires us to do, we would do substantial injustice if we were help inflate fees still further by allowing parties to recover on the “B” and “C” scales in anything but truly important, complex or valuable cases. The “duty of diffidence” that the Constitutional Court urged on the legal profession in Camps Bay (at paragraph 11) ought also, in my view, to be observed by Judges in applying rule 67A.

 

[27]   To do otherwise would surely push the cost of legal services still further beyond the means of the vast majority of South Africans. In a society based on constitutional rules and a supreme law bill of rights underwritten by an independent judiciary, the courts should ideally be accessible to everyone on equal terms. We do not live in a society marked by equal access to justice for all, and there are limits to what a Judge can do to create one. But the least that can be expected of us is to exercise the powers we do have in a manner that avoids making things worse."

 


"[22] The parties are agreed that costs should follow the result and that costs should be on scale C in terms of rule 67A(3) read with rule 69. I should deal with one matter so far as costs are concerned. In terms of rule 67A(2)(c), one of the factors I may have regard to in awarding costs is “unnecessary or prolix drafting”. As I set out above, much of EMS’s answering affidavit deals with its contentions on the permissible topics on which it may interrogate Mr Laher. As I also set out above, that is not a matter I am required to decide. That despite, I do not consider EMS’s answering affidavit to contain unnecessary material. The permissible topics of an interrogation is an issue in this application, because Mr Laher made it an issue in his founding affidavit. EMS was therefore entitled to deal with it.

[23] I make the following order:

a. The application is dismissed;

b. The applicant is to pay the fifth respondent’s costs, on scale C."



"[31] There is no reason why costs should not follow the result. The matter did not proceed on 04 October 2023 due to my non-availability. The parties are in agreement that the costs of that day should be in the cause. I cannot fault the agreement. I need to add a dimension to the issue of costs. It had been hoped that judgment would be delivered by 12 April 2024, but that did not come to pass until rule 67A of the Uniform Rules came into operation.[12] For the sake of caution, on 22 April, I invited counsel to chambers as I was of the view that the rule applies prospectively.[13] Counsel shared this view.


Footnotes:

12 The primary purpose of Rule 67A is to allow the court to exercise control over the maximum rate at which counsel’s fees can be recovered under a party and party costs order.

13 Mashavha v Enaex and Others (Pty) Ltd (2022/18404) [2024] ZAGPJHC 387 (22 April 2024)."




"[130]  A new Rule 67A, relating to the scale of costs in a party and party bill became effective on 12 April 2024. See Government Gazette No 50272, R 4477 published on 8 March 2024. The new rule, as part of the Rules “ Regulating the Conduct of the Proceedings of the Provincial and Local Divisions of the High Court “ is not presently relevant, at least for the reason that my order is for attorney and client costs. See Mashava v Enaex Africa (Pty) Ltd ( 2022/18404 ) [2024] ZAGPJHC 387 (22 April 2024) at paragraph 5. It is accordingly not necessary for me to determine whether or not Rule 67A applies to Equality Court costs."



"Costs

 

[41] The respondents have asked for costs on a punitive scale of attorney and client in the event that the applicants are not successful. There may very well be a prospect of the normal future employer/employee relations being restored in the event of the applicants being successful in respect of part B. If they are not successful in respect of the review application the ultimate outcome of the disciplinary process may very well be in their favour. It would therefore be inappropriate for costs to be on a punitive scale at this stage. I am of the view that ordinary costs albeit on scale C of Rule 69 of the Uniform Rules of Court in terms of Rule 67A thereof would be more appropriate especially this being essentially an employer/employee dispute.

 

Result

 

[42] In the result the following order is made:

 

1. The application is struck off the roll.

2. The applicants are ordered to pay the costs of this application jointly and severally, the one paying the others to be absolved on scale C of Rule 69 of the Uniform Rules of Court."



"[26]  In the circumstances I make the following order:

 

26.1 The defendant is liable for 100% of such damages as the plaintiff has been able to proof.

26.2 The plaintiff’s claims for past hospital and medical expenses as well as loss of income are dismissed.

26.3 The plaintiff’s claim in respect of general damages is postponed sine die.

26.4 The Plaintiff’s claim in respect of future hospital and medical expenses succeeds and the Defendant is ordered to provide the plaintiff with an unlimited Undertaking in terms of Section 17(4) of the Road Accident Fund Act.

26.5 The plaintiff is entitled to her party and party costs, as taxed or agreed, and in so far as the matter was heard before the amendment to Rule 67A of the Uniform Rules of the High Court the scales contained therein is not applicable.

26.6 Given the dismissal of the plaintiff’s claim for loss of income the plaintiff is not entitled to recover any costs associated with the reports of First Leap Consulting and Ekhaya Risk Services from the defendant."




"195. Recently, Uniform Rule 67A dealing with a party and party award of costs was inserted by Government Notice R4477 in Government Gazette 50272 and took effect on 12 April 2024. Subsequent to the amendment of the Rules, ON 22 April 2024, Wilson J delivered a judgment on Rule 67A in Mashavha v Enaex Africa (Pty) Ltd[140]. As the amendment came into effect after the matter was argued and Mashavha was delivered very recently, I am of the view that the parties should be afforded an opportunity to make brief submissions on whether the amended Rule 67A applies to any costs order(s) I intend to make in this application, and furthermore, the scale thereof with reference to Rule 67A(3) read with sub-rule (9). Counsel will be afforded 10 days from date of judgment to provide a brief Note on Rule 67A and the scale of costs."



"[36] In the circumstances of this case and having regard to the marginal success and the quantum, I deem it fair that costs be assessed and awarded in terms of the recent amendments to Rules 67A, 69 and 70[6] on scale A as provided therein, but only from 12 April 2024. In the exercise of my discretion and, due to the fact that apportionment could not have been foreseen to the extent ordered, I determine that such costs shall be on a High Court scale.


Order


[37] In the premises, the following order is made:

...

4. The defendant is ordered to pay the plaintiff’s taxed or agreed costs on the High Court scale within 14 days from date of taxation or agreement and from 12 April 2024 such costs shall be on Scale A as provided for in Rule 67A."



"24. Mr Hollander again pressed for a punitive costs order. I do not consider that to be appropriate. It was the cumulative effect of various factors that led me to grant a punitive costs order in the main application. Most of those factors are not present in this application.


25. It remains to consider the appropriate scale of costs in terms of Rule 67A read with Rule 69. The new rules came into effect on 12 April 2024. In Mashavha, Wilson J held that the amendments operate prospectively.[5] I agree.


26. Mashavha raises a number of interesting issues, including whether Scales B and C should only be awarded in “… truly important, complex or valuable cases.”[6] It is not necessary for me to consider whether this is correct, but my judgment should not be viewed as endorsing this approach.


27. Costs orders, including the assessment of the appropriate Rule 69 scale, remain a matter for the exercise of judicial discretion.


28. Just as was the case in Mashavha, Mr Hollander predictably sought costs on Scale C. He said that this matter should have come to an end after the answering affidavit was filed and that the respondents had been forced to become embroiled in an opposed matter, commencing with an urgent application.


29. In my view, the factors relied on by Mr Hollander are outweighed by the factors that are expressly referred to in Rule 67A(3)(b). First, this is not a complex matter. The very reason why it should have ended after the answering affidavit is that it is not complex.


30. Second, in considering “the value of the claim or importance of the relief sought”, from the point of view of a respondent or defendant, it is necessary to consider the relief sought by the applicant or the defendant. In my view, this is assessed not by considering the outcome of the matter, but what was being sought by the applicant or plaintiff.


31. In this case, the relief sought in the notice of motion was restoration of possession of the truck and trailers. If the respondents were ordered to return the truck, the first respondent ran the risk of never recovering the towing charges and storage fees. The amount at risk was relatively low.


32. The first respondent is the owner of the trailers. The sale price for the trailers was R391 000,00. It is fair to assume that this is the approximate value of the trailers. The first respondent has received payment of the bulk of the purchase price. According to the statement provided by the first respondent, the amount outstanding as at 3 June 2023 (excluding additional charges) was R67 325,00. At the date when the application was launched, the first respondent was (and indeed it remains) in possession of both the money paid in terms of the sale agreement and the trailers. If it were ordered to return the trailers, it would lose security for a debt of R67 325,00. Looked at differently, it runs the risk of losing an asset worth less than R400 000.


33. These are not substantial amounts.


34. Accordingly, taking into account the complexity of the matter and the value of the claim or importance of the relief sought, this is not a matter that warrants a higher scale than Scale A.


Conclusion


35. I accordingly granted an order in the following terms:

...

35.3. The applicants are ordered to pay the costs of the application jointly and severally, the one paying the other to be absolved. Counsel’s fees are to be taxed on Scale A."


 

“Costs

23.  After the hearing of this matter, I asked the parties to make additional submissions on the issue of costs in the light of the new taxable party and party costs regime ushered in by the new Uniform Rule 67A[5] and amended rule 69(7).

“67A. Costs

(quotes the rule)

 …”

25.  The new tax regime came into operation one week before the hearing of this matter. I agree with the submissions of counsel for all sides that it should only be applicable to work done after the 12th of April 2024.

 

26.  In the submissions sent to me by the parties, I was referred to the case of Mashavha v Enaex Africa (Pty) Ltd (2022/18404) [2024] ZAGPJHC 387 (22 April 2024). Wilson J held that on the facts of the case that had to be argued before him, Scale A was the applicable scale to be applied. In the course of his judgment at paragraphs 16 and 17 Wilson J held:

 

“16   Likewise, the default position set under the rule is that, in the absence of contrary indication, counsel’s costs will be recovered on scale “A”. Scale “A”, it seems to me, is the appropriate scale on which to make an award unless the application of a higher scale has been justified by careful reference to clearly identified features of the case that mark it out as unusually complex, important or valuable. Run-of-the-mill cases, which must be the vast majority of cases in the High Court, should not attract an order on the B or C scales.

 

17   In the case presently before me, the issues were uncomplicated. The entire case was determined on the bases of jurisdiction and standing. The merits never became relevant. The hearing lasted well under an hour. The case was competently and ethically pursued by all concerned. The “A” scale is plainly applicable.”

 

27.  It was submitted by all counsel in their submissions that given the complexity of this matter that Scale C should be the applicable tariff for all counsel, including junior counsel where so employed. I agree that the requirements in Rule 67A(3) have been satisfied. None of the provisions of Rule 67A(2) are applicable. In addition I agree with the Applicant’s submissions that the issues requiring determination in this leave to appeal were novel in nature. The Applicant itself was represented by senior counsel, junior counsel, and assisted by a third counsel and fourth counsel too. The State Respondents were fully entitled to employ two counsel.

 

28.  While I am cognizant of the fact that the new taxable costs regime no longer considers seniority of counsel, but rather complexity of the matter and value of the claim or importance of the relief sought to be the deciding factors, in my view a court should be wary not to grant or approve costs on a scale which counsel of a certain seniority would not ordinarily charge his or her own attorney and client. This would run counter to the intention of the new regime and views expressed by Wilson J.

 

29.  I note that junior counsel employed by the State Respondents, according to his Group website, was admitted as an advocate in January 2014. Before than he was an attorney of roughly eight years standing. Normally counsel in this category would charge out their services closer to the upper limit of Scale B rather than Scale C, irrespective of the complexity of the matter.

 

30.  I further note that the two thirds rule in place at the GCB bars in terms of which second or junior counsel charge their services out to their clients at two thirds what their seniors charge is not expressly endorsed by the new regime. The previous costs regime allowed second counsel to recover only upto 50% the fees of the first counsel[6]. If Adv. Mhambi is indeed charging two thirds of what his leader Adv. Mokhari SC is charging, the effect of my order will have the same tempering effect on what can be recovered in respect of both counsel’s fees on the party and party scale.

 

Order

“1.The application by Buhle Waste (Pty) Ltd for leave to appeal the dismissal of its application in terms of Section 18(1) and 18(3) of the Superior Courts Act 10 0f 2013 for leave to execute the order dated the 30th of November 2023 is dismissed.

 

2. The Applicant is ordered to pay the party and party costs of the first, second, fourth and fifth Respondents as well as those of the 10th Respondent.

 

3. The aforesaid costs shall include the costs of two counsel where so employed.

 

4. For all legal services pertaining to this application rendered by Counsel after the 12th of April 2024, the costs of Senior Counsel shall be taxed on Scale C and that of Junior Counsel shall be taxed on Scale B of Rule 69(7) of the Uniform Rules of Court.


Comment 

While the views expressed by the learned Judge are undoubtably generally correct, it is submitted that they will contribute to confusion regarding the application of the rule. The rule provides that the considerations which ought to be applied are the complexity of the matter, the importance of the relief sought and the value of the claim, the seniority of counsel involved in the matter is not a consideration in terms of the rule. Furthermore it is submitted that the dicta contained at paragraphs 29 and 30 ought not to be followed, as the court is ignoring that the particular scales are the maximum fees that may be recovered on taxation for counsel or an attorney appearing in the High Court. The actual fees charged are not a pertinent consideration.

 


“[24]     After considering the arguments by the parties, I am of the view that imposing a punitive cost order against the State Attorney in the circumstances of this case would be misplaced and inappropriate for the reasons set out earlier. 

 

(c) Rule 67A of the Uniform Rules of Court

 

[25]     Rule 67A(3) which came into effect on 12 April 2024, requires that part-and-party costs in the High Court be awarded on Scale A, B or C, respectively. This amendment applies prospectively in relation to work done on a matter after 12 April 2024. Rule 67A addressed itself only to awards of costs as between party-and-party with the purpose to exercise control over the rate at which counsel’s fees can be recovered under such an award.

 

[26]     Counsel for Plaintiffs and Defendants were ad idem on the appropriate scale. I find no reason to differ from them in this regard and accordingly order that Counsel’s fees be taxed on a Scale “B” given the clearly identified features of this case that were unusually complex, important and valuable to all the Plaintiffs who have patiently waited for closure.”

 


"On 12 April 2024, rule 67A came into effect. Rule 67A(3)(a) requires that party and party costs be awarded on one of three scales. There is no indication in the rule that its provisions are applicable retrospectively. Wilson J had occasion to deal with this aspect in Mashavha v Enaex Africa (Pty) Ltd [29] and held the view that the provisions of rule 67A can only apply prospectively. [30] With this statement, I respectfully agree. It is therefore not necessary for me to request submissions from the parties pertaining to the appropriate scale of party and party costs in this matter.

[29]       [2024] ZAGPJHC 387.

[30]       At para 12."

 


"[16] Ms Ntsepe requested me to make a cost order to include counsel fees to be taxed in accordance with Scale B, as set out in rule 69(7) of the Uniform Rules of Court read with rule 67A(1)(c), citing the length of the record, the various grounds of review that had to be carefully considered, the complexity of the matter and the importance of the relief sought in support thereof.  Moreover, the conduct of the applicant and his legal representative and their failure to attend roll call, failure to file heads of argument and the prolix drafting, containing vexatious and irrelevant matter warrants Scale B. Following the reasoning of Wilson J in Mashavha v Enaex Africa (Pty) Ltd [2] Scale A is the appropriate scale on which to make an award unless application of a higher scale has been justified by careful reference to clearly identified features of the case that mark it out as unusually complex, important, or valuable. Run-of-the-mill cases, which must be the vast majority of cases in the High Court should not attract an order on the B or C scales.[3]

 

[17] In the present case, the issues were uncomplicated, and the matter was dealt with in the absence of the applicant within a relatively brief time. The first respondent at no stage sought a punitive costs order against the applicant, and I am not inclined to order costs on a scale contrary to the default position under Uniform Rule 67A(3)(c)."

 

Comment

It is submitted that the reference to seeking a punitive costs order is incorrect. The scales of costs are only determined on the three issues set out in rule 67A(3)(b)(i) and (ii), if punitive costs are sought that is a separate issue.

 

 


“[11]  Costs ought to follow the event. The application for leave to appeal was instituted before 12 April 2024 and much of the services which were rendered in relation to it, was rendered prior to that date. I heard the matter on 2 May 2024 and really what remained to be done between 12 April 2024 and 2 May 2024 related to the preparation of heads of argument and to the oral argument of the matter on that day. This work was not of the type or complexity which warrants an award for costs on the B or C scales as envisaged under the very recent amendment of the Uniform Rules of Court. I in this regard refer to Rule 67A(3).

 

[12]  In the result the following order will issue:

[12.1]  The application for leave to appeal is dismissed.

[12.2]  The costs of the application are to be paid on the appropriate scale as between party and party, save that in relation to the preparation and appearance of counsel and his instructing attorney after 12 April 2024 and to any recoverable post-hearing attendances, are to be limited to scale A as contemplated in Rule 67A of the Uniform Rules of Court.”

 

Comment

One assumes that the court is not suggesting that the preparation of heads of argument and the presentation of oral argument would never constitute sufficiently complex work as to warrant an award on scale B or C. However it is interesting that the court separated that work as being of such a nature in this matter.

 


[32]  I am not persuaded that the attorney and client costs are warranted. I could not discern a complex and complicated aspect of the matter that necessitates scale “C” and “B” under rule 67A of the Rules of Court. Scale “A” is fitting.

 


"[4]  Ms Mhlongo concedes party and party costs. She says that, as from 12 April 2024 when the new Rule 67A came into operation, the plaintiff is entitled to costs on scale B. Mr Khan seeks costs on scale C, the higher scale.

 

[5]  Mr Khan does not ask for costs for Tuesday, 21 May when the matter stood as no judge was available. He seeks costs for yesterday and for today. Ms Mhlongo concedes costs for yesterday, 22 May.

 

[6]  Mr Khan says that his client needed a reasonable time, from yesterday afternoon until this morning, to consider the Fund’s offer. He said that he needed to explain the matter in detail to his client. In my view, the time needed was reasonable in the circumstances. This case is an ordinary everyday matter for lawyers who deal with such cases. But it is a significant matter for the plaintiff, Mr Bulbulia. Mr Bulbulia was entitled to question Mr Khan about the case and the offer. Costs should include those for 22 and 23 May 2024.

 

[7]  The amount settled, R2.9m is large but this case, from a lawyer’s perspective, is not out of the ordinary. Scale B is fair for costs as from 12 April 2024 onwards."

 

 


"E.    COSTS

 

[38] There is no reason why costs should not follow the result. In most respects the respondents have failed to make out a case for resisting the applicant’s application. What is more is that, despite the statutory duty imposed upon the respondents to notify affected third parties, the respondents not only failed to comply with that requirement despite numerous requests from the applicant to do so, but also relied upon the fact that the third parties were not so informed as a defence in these proceedings. And it has taken these proceedings to ensure such compliance.

…

d.      The first and second respondents shall pay the applicant’s costs, jointly and severally, the one paying the other to be absolved, in terms of scale C of Uniform Rule 67A, read with Rule 69, including costs of two counsel where so employed.”

 

Comment

The basis on which the order in this matter was made is not indicated. The use of two counsel would suggest that it is of a complex nature, however there is nothing in the judgment, aside from this fact, to suggest that this is the case.



Suggested form of orders:

For a successful litigant in a complex and important action where more than one counsel is utilised:

"Costs of suit, such to include the costs of two counsel where employed, and to be taxed on scale C of rule 69(7)."


For a successful applicant in a moderately complex opposed application:

"The respondent is directed to pay the costs of the application, with such costs to be taxed in accordance with scale B of rule 69(7)." or

"The respondent is directed to pay the costs of the application on scale B."








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