Having had experience, on both sides of the fence, so to speak, as taxing master of the then Cape of Good Hope Supreme Court between the years 1993 and 1996 and thereafter as a legal costs consultant for twenty one years, I can address the myriad of issues pertaining to taxing masters and taxations with an experienced and objective assessment. Thereby attempting to assist practitioners and candidate attorneys how to approach taxations and taxing masters. The first document to become acquainted with is the tariff, know it well.

Since most taxations take place in the High Court, I shall concentrate on the High Court Tariff and the duties and functions of the taxing master of the High Court, and how to approach the tariff and the taxing master. A very similar approach can be adopted in the Magistrate’s Court with one distinct difference; the Magistrates Court Tariff is a creature of Statute and as such the taxing master (previously called Clerk of the Court) is bound to the tariff and cannot depart therefrom, he / she has no discretion whereas in the High Court as will be explained, the taxing master has a discretion.

Over the years there have been many changes. For many years the Supreme Court Tariff followed a very strict, copious, rigid yet logical approach, there is no need to delve into the format of the old Supreme Court Tariff. This Tariff was repealed twenty years ago in October 1996 where after the current High Court Tariff came into practice. Obviously the hourly rates, drafting, perusal, copies and all other attendances have increased over the twenty year period to keep abreast with inflation. However, over this twenty year period, the format has remained the same. It is the format that poses the difficulty; initially there was a serious attempt to simplify the tariff, making it more “user friendly”. In an attempt to simplify the tariff the Rules Board in effect complicated it.

A few pointed examples, the issue of perusal and the tariff page (dealt with elsewhere); the old Supreme Court Tariff had different rates for perusal of documents depending on their relevance, content and nature removing this logical option and lumping all perusal to comply with the one tariff page (shall contain 250 words) proviso, in my opinion, was a huge error which has led to great confusion. Very often departure from the tariff becomes necessary because to apply the perusal rate prescribed by the tariff would not make monetary sense and defies logic, the loser tends to be on receiving end when strictly applying the tariff in this regard.

Another example of the current tariff’s deficiencies is making a globular rate applicable to drafting letters, affidavits, substantial documents and pleadings to be included in an inclusive tariff – drawing up, checking, typing, printing, copies, delivery and filing thereof, per page of the original only – invariably in practical terms adopting a globular approach leads to money being lost on taxation by the successful party.

The above are just a few examples as to how the current tariff seems to lack balance, because it is so open to interpretation and it is one dimensional. Taxing masters from different Divisions apply totally different approaches, from how a bill of costs must be drafted to the approach to be adopted when taxing the perusal of documents, to how to treat costs on application. Such varying interpretations have led to confusion and inconsistency.

The taxing master is a creature of Rule 70 (1) of the Rules of Court which provides:

“( 1) (a) The taxing master shall be competent to tax any bill of costs for services
actually rendered by an attorney in his capacity as such in connection with litigious
work and such bill shall be taxed subject to the provisions of sub-rule (5), in
accordance with the provisions of the appended tariff: Provided that the taxing master
shall not tax costs in instances where some other officer is empowered so to do.”

[12] This Sub-rule has been interpreted to mean that the Taxing Master’s power to tax “any
bill of costs” includes bills as between adversaries in litigation and as between a litigant and
that litigant’s own attorney: i.e., bills usually described as ” attorney and own client”.
The taxing master of the High Court derives his / her authority to depart from the tariff in terms of Rule 70 (5) (a) 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.
As can be gauged from Rule 70 (5) (a) the taxing master is bestowed a discretion to depart from the tariff and in some instances from the hourly rate.
However, the taxing master has to give effect to an Order of Court or agreement between the parties and may not make such an Order by proceeding with taxation without a Court Order.
The principle therefor is the court has to give the taxing master directions (by way of a Court Order) as to what is to happen with the costs. The Taxing Master has no discretion in this regard, neither can the taxing master place his / her own interpretation on the Order of Court.
The taxing master is also bound by the Rules and authority which has become trite law – the taxing master CANNOT depart from the provisions of Rule 69 (2) or an Order in terms of the Rule 43 limitations. The taxing master has no discretion to allow the travelling costs of counsel to the seat of another court; in the case of Windhoek Crushers (Pty) Ltd v Voigts en ‘n ander 1969 (1) 574 (SWA) it was held that the taxing master has no discretion in regard to travelling of expenses.

Counsel’s charges for travel and subsistence expenses to another Court, other than the one in which he practices are not a Party and Party charge. Minister of Water Affairs v Meyberg 1966(4) SA 51(E).

Counsel’s disbursements for airfare disallowed where local Counsel were available. Groenewald v Selford Motors (Edms) Bpk 1971(3) SA 677 (C).

Thus the litigant cannot claim the travelling expenses of an out of town counsel when the litigant can use the services of counsel practicing at the seat of the court.

Certain positive aspects have been included in the taxation procedure such as the 2010 amendment when sub-rule 70 3 (a) of the High Court Rules was inserted; which states that the party presenting the bill of costs will serve the bill together with the Notice of Intention to Tax the Bill of Costs on the other side who then has ten days to inspect the file and twenty days in which to file their notice to oppose together with their written objections to the bill of costs with reasons clearly stated thereon.
If no opposition and objections are filed within the 20 days, the Taxing Master will still allocate a date for taxation but the opposing side will not be allowed to play a role in the unopposed taxation, condonation would have to be sought from a Court.
The above rule came into operation on 12 March 2010 and has proved to be of great assistance with regard to settling bills of cost, preparing for argument at taxation and affording the taxing master with a written record of what exactly is being objected to and possible written responses thereto, it has expedited the whole procedure.
Be as alert to the dies with regard to service and filing of the above notices as you are with the service and filing of pleadings and notices.

When serving and filing a bill of costs always ensure that the Rule 70 E 3 (a) Certificate has been signed by the attorney dealing with the matter, when the bill of costs has been drafted by a costs consultant not in the direct employee of the attorney. It is also prudent to attach all disbursement vouchers and the Order of Court to the bill of costs when serving and filing. Always make an extra copy of the bill and annexures for taxation, invariably, for whatever reason, the taxing master does not have a copy of the bill of costs. This may be no fault of the taxing master but of the general running of the Registrar’s office. The taxing master is a judicial officer performing a judicial function; the office of the taxing master should be treated with respect and decorum.
A nettlesome problem for cost consultants, in particular, and practitioners, in general, is the issue of the right of appearance at taxation. For many years, including when I was the taxing master at the Cape High Court, unqualified persons including cost consultants were excluded from attending taxations, relying on the Appellate Division decision of Bill of Costs (Pty) Ltd v The Registrar, Cape, NO 1979 (3) SA 923 (A); this case dealt with the question whether a non-qualified person was entitled to represent a litigant at taxation; the Appellate Division ruled that a non-qualified person was NOT entitled to represent a litigant at taxation on the grounds that the taxation of a bill of costs is an integral part of the proceedings before a court and the taxing master performs a judicial and not an administrative function.
As a taxing master I applied the above ruling strictly based on the advices of two Judges at the Cape Supreme Court at that time. The legal costs industry was small when I was a taxing master. The very company which was applicant in the above decision had the monopoly with regard to bills of cost in the Western Cape. At that stage, most practitioners were well versed in costs and attended their own taxations; the need for cost consultants appeared luxurious.
Since leaving the Department of Justice over twenty years ago, the costs industry has grown with many new cost consultants joining the industry. The cost of litigation has burgeoned into a situation that the average middle class citizen cannot afford to litigate in the High Court, leaving the less fortunate without much recourse to Justice. The advent of the amendment to Rule 70 (discussed above) has also increased the need for experts to deal with costs. I have been and remain a strong advocate that the costs industry be regulated to the benefit of all, but that is a whole subject which is deserving of separate attention.
Over the past fifteen years plus, practice has developed at The Cape High Court to allow a cost consultant to represent a litigant at taxation. From time to time this right is revoked by the Registrar of the Cape High Court; the current Registrar applies a strict interpretation of the Bill of Costs (Pty) Ltd v The Registrar, Cape, NO case (supra) and directs attorneys to be in possession of the Certificate as provided for in the Right of Appearance in Courts Act 62 of 1995.
Whilst one can argue in favour of the Registrar’s stance, although I definitely do not see the need for a certificate, I was always in the anomalous situation of having been good enough to be a Senior Registrar and Taxing Master 1992 – 1996 yet there were times, as a cost consultant, when my presence was objected to and the taxing master had to act on that objection. So, my personal experience alone leaves me scratching my head at a situation which needs serious review; only a regulated industry can pressurize the powers that be with serious review and changes to the current system of taxations, the tariff and the structure of the taxing master’s office.

Contributor
Stan Horowitz
November 2016