On 8 March 2024 several changes to the High Court rules were published in the Gazette. These will come into effect on 12 April 2024.
The gazette can be accessed on the Government Printing Works sharepoint, the PDF itself or on African Gazettes.
The changes are as follows:
Rules affected: | 4 - Service; 69 - Advocates’ fees in civil matters in the provincial and local divisions of the Supreme Court; Tariff of fees; 70 - Taxation and Tariff of Fees of Attorneys. |
Rules introduced: | 67A. Costs |
Rules repealed: | No rules are to be repealed in their entirety, however sub-rules 69(3), (5) and (6) are repealed. |
Forms: | Form 16A - Subpoena duces tecum is amended. |
Key Changes
Rule 4 - Service:
The word "leaving" is substituted with "delivering" in sub-paragraph 4(1)(a)(ii), in respect of service on a place of residence, the meaning of the sub-rule now being that a copy of the process or document to be served shall be "delivered to" a person in charge of the premises and apparently over the age of 16 rather than "left with" such person.
In sub-paragraph (4)(1)(a)(iv), the alternative "or leaving" to "delivering" is deleted, and the obligation to deliver the process or document to a person apparently not less than sixteen years of age at a chosen domicilium is introduced. Service of a document or process issued by the high court must now therefore be delivered to a person at a domicilium address, rather than left or affixed at that address.
It is worth noting that the comparable amendment to the Magistrates' Courts rules provides that service shall be on a person apparently not less than sixteen years of age, where possible. It appears that the rules board has removed the discretion of the High Court in this regard, while preserving it for the Magistrates Courts.
New rule - "67A Costs"
"(1) Subject to any order of the court awarding costs, the fees and disbursements as between party and party, which may be included in a bill of costs submitted for taxation, shall be –
(a) for attorneys, in accordance with the tariff in rule 70;
(b) for attorneys, with a right to appear in the Superior Courts and who appear in a matter in accordance with rules 69 and 70, where applicable; and
(c) for advocates, in accordance with the tariff in rule 69: Provided that for services rendered by an advocate referred to in section 34(2)(a)(ii) of the Legal Practice Act, 2014 (Act No. 28 of 2014), for work which is ordinarily performed by an attorney, the fee for such work shall be in terms of rule 70.
(2) In considering all relevant factors when awarding costs, the court may have regard to –
(a) the provisions of rule 41A;
(b) failure by any party or such party’s legal representation to comply with the provisions of rules 30A; 37 and 37A;
(c) unnecessary or prolix drafting, unnecessary annexures and unnecessary procedures followed;
(d) unnecessary time spent in leading evidence, cross examining witnesses and argument;
(e) 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
(f) whether the litigation could have been conducted out of the magistrate’s court.
(3)
(a) A costs order shall indicate the scale in terms of rule 69, under which costs have been granted,
(b) in considering the factors to award an appropriate scale of costs, the court may have regard to:
(i) the complexity of the matter; and
(ii) the value of the claim or importance of the relief sought.
(c) If the scale in terms of paragraph (a) is not indicated in the order, scale A of rule 69(7) shall apply to the costs that the court has awarded.
(4) A costs order may upon application by any party indicate –
(a) which portions of the proceedings are deemed urgent; and
(b) whether the fees consequent upon the employment of more than one advocate or attorney having right of appearance in the Superior Courts and who appears, are allowed and the scale in terms of rule 69, under which such fees are allowed.
(5) The taxation of fees as between party and party shall be effected by the taxing master in accordance with rules 69 and 70 and the applicable tariffs therein.
(6) Where an item in the tariff set out in rules 69 and 70 requires the taxing master too exercise a discretion in determining the amount of a fee or disbursement to be allowed for such item, the taxing master may have regard to any guidelines recommended by the Legal Practice Council."
The most significant aspect of the new rule appears to be sub-rules 2 and 3 which enjoin the court to consider various factors when making an order for costs, these are:
the provisions of rule 41A;
failure by any party or such party’s legal representation to comply with the provisions of rules 30A; 37 and 37A;
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.
Further considerations in relation to the scale of costs are:
the complexity of the matter; and
the value of the claim or importance of the relief sought.
Rule 69 - Advocates' fees in civil matters
Sub-rules 69(1) and (2) are extended to include attorneys having right of appearance in the Superior Courts.
Sub-rules 69(3), (5) and (6) are repealed.
New sub-rules (7) and (8) are introduced to create a scale of fees to be applied under the new rule 67A(3), and a Tariff of Fees is inserted which will be allowed for work performed by legal practitioners.
Rule 70 - Taxation and tariff of fees of attorneys
The Tariff for inspections "in situ" is extended to include "in loco". And the following item is included in section D of the Tariff of Attorneys:
"The fees in sections A, B, C and D shall be increased by 15% in accordance with any costs order made in terms of rule 67A(4){a) and as allowed at taxation."
Comments