AD and Another v MEC for Health and Social Development, Western Cape

• Jurisdiction: South Africa
• Judge: Rogers J
• Judgment Date: 01 March 2017
• Citation: 2017 (5) SA 134 (WCC)
• Docket Number: 27428/10
• Hearing Date: 01 March 2017
• Counsel: D Irish SC (with W Munro) for the plaintiffs. N Bawa SC (with M O'Sullivan) for the defendant.
• Court: Western Cape Division, Cape Town

Rogers J:

Introduction H

[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 I also been given two lever-arch files containing the authorities cited in the heads. I heard argument over two days.

[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 J associated with the defendant's conditional counterclaim; (ii) the costs

Rogers J

attendant on the employment of two counsel; and (iii) the preparation A 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 —

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that the defendant should be liable for the fees not only of their B principal attorney, Mr Joseph (who is based in Johannesburg), but also of a second attorney, Mr Ginsberg (who is based in Cape Town);

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that the fees of the said attorneys should be taxed on the attorney/client scale;

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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 C allowed for Mr Irish rather than the one-half permitted by rule 69(2);

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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);

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that the costs recoverable in respect of expert witnesses based in D Gauteng should include their reasonable costs of travel to Cape Town (economy class) and accommodation;

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that the costs recoverable in respect of Dr Strauss, who lives in California, should include his return flight (business class);

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that the costs recoverable in respect of Mr Joseph and Ms Munro E should include their reasonable costs of travelling to Cape Town (economy class) and Ms Munro's reasonable accommodation costs in Cape Town;

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that the costs recoverable in respect of Mr Irish should include his costs of travelling to Johannesburg (business class) and accommodation costs in those instances where he consulted with Gauteng-based F experts in Gauteng; and

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that the defendant should be liable for the travelling costs of the plaintiffs and IDT (economy class) in those instances where they consulted with experts in Gauteng.

Admissibility of evidence on costs G

[4] The plaintiffs filed two affidavits by Mr Joseph as being relevant to costs. The first affidavit (to which I shall refer as the founding affidavit) was made in support of an application for the court to receive into evidence (i) an attached affidavit by Mr Joseph providing an estimate of H the plaintiffs' costs (to which I shall refer as the costs affidavit); (ii) a secret offer of settlement made by the plaintiffs on 31 October 2013. The defendant opposed the application but dealt at length with the costs affidavit and the secret offer in the event of the court finding them to be admissible.

[5] Legal costs are a very substantial feature of this case. Mr Joseph's I costs estimates were germane to certain submissions which the plaintiffs' counsel wished to make. Although the defendant complained that the costs affidavit was an attempt to draw the court into matters of taxation, the plaintiffs made clear that this was not the intention. They wanted the court to have a sense of what the actual costs of running the case were. J

Rogers J

Although A the filing of such affidavits in the ordinary run of cases is not to be encouraged, I think it was legitimate in this matter for the plaintiffs to place this material before the court. I thus rule that the costs affidavit and the answering and replying material relating to the costs affidavit are admissible as evidence. (Both sides argued costs on this basis, in the defendant's case while advancing as her primary contention that the B costs affidavit was inadmissible.)

[6] I shall deal later in this judgment with the admissibility of the secret offer.

The C costs of two attorneys

[7] The costs of the second attorney, Mr Ginsberg, cover work as a second attorney and work as a Cape Town correspondent.

[8] In terms of rule 70(8) the taxing master may allow the costs of more than one attorney where he is of the opinion that more than one attorney was necessarily engaged in the performance of any of the services D covered by the tariff. In the affidavits to which I have referred, Mr Joseph sets out circumstances which in his view justified Mr Ginsberg's active involvement as an attorney and not merely as a correspondent. The defendant denies that the services of a second attorney were needed, claiming that at least some of the tasks mentioned by Mr Joseph could have been E done by a secretary or candidate attorney.

[9] I am neither inclined nor able on the material before me to determine those attendances, if any, where a second attorney was necessarily engaged. I do not intend to make a special order usurping the taxing master's function (cf Marshall v Minister of Police 1970 (1) SA 251 (E) at F 252A – C; Aaron's Whale Rock Trust v Murray & Roberts Ltd and Another 1992 (1) SA 652 (C) at 661C – H). The litigation was complex and onerous. The taxing master may well be persuaded that a second attorney was necessarily engaged on some aspects of the litigation, but that will be a matter for his discretion. I do not feel better placed than he G will be to decide the question.

[10] In regard to Mr Ginsberg's engagement as a correspondent, this was necessitated by the plaintiffs' decision to employ Joseph's Inc as their main attorney. The plaintiffs justify this on the basis that Mr Joseph is very experienced in medical cases and that his firm was willing to act on contingency and fund the cost of the litigation. Since counsel were not H acting on contingency, the funding of the litigation was no small matter.

[11] The contingency fee agreement was concluded in April 2010 and summons issued in December 2010. The defendant conceded the merits on 31 July 2012. Because the defendant made no secret tender, the I plaintiffs — who were always going to recover a substantial amount — were no longer at risk of not being able to pay an attorney's normal fees. However, the position was anything but certain when the contingency agreement was concluded and summons issued. Joseph's Inc, having taken a substantial risk for more than two years, was entitled to the benefit of its contingency agreement even though the risk of defeat J abated with the defendant's concession of the merits.

Rogers J

[12] The plaintiffs could not have afforded to run this litigation at their A own expense. They could only have brought the case by reaching a special arrangement with their attorneys.

[13] The general rule is that a litigant who resides in a town distant from the seat of the court is entitled to engage an attorney in the place where he resides and that in such cases the costs of a second (correspondent) B attorney at the seat of the court is justified (Sonnenburg v Moima 1987 (1) SA 571 (T)). The general rule would thus not, in the present case, permit the plaintiffs to recover additional costs occasioned by their choice of a Johannesburg attorney. I cannot find on the evidence before me that the plaintiffs could not have found a competent firm in C Cape Town to act on a contingency basis. Put differently, I cannot on the material before me conclude that the plaintiffs could not have instituted action except by engaging Joseph's Inc or some other out-of-town firm willing to act on a similar basis. The plaintiffs may be able to persuade the taxing master that this was indeed the case, in which event the taxing master in his discretion might properly allow the further costs occasioned D by the engagement of a main attorney in Johannesburg.

Mr Joseph's travel costs

[14] In the light of what I have just said, the allowance of Mr Joseph's travel costs should be left to the taxing master pursuant to any decision E he may make to allow the costs associated with the engagement of a Johannesburg attorney.

Ms Munro's travel and accommodation costs

[15] I do not know what the taxing master's attitude would be to the F costs associated with engaging junior counsel from Johannesburg. Ms Munro is clearly an experienced counsel in medical matters. She is an advocate with whom Mr Joseph has previously worked in similar cases. However, I think it would be going quite far to say that the plaintiffs could not have secured a competent and experienced junior in Cape Town to assist Mr Irish. I certainly do not feel comfortable in making a special order on that premise. This should be left to the taxing master. G

Ms Munro's fees

[16] The plaintiffs seek a direction that on taxation Ms Munro's fees be allowed at two-thirds of Mr Irish's fees rather than the one-half prescribed in rule 69(2). H

[17] Ms Munro is very experienced in medical matters. She has been at the bar for more than 10 years and was an attorney for some years before that. The present case was lengthy and complex. She played an active role, leading and cross-examining some of the witnesses and making I closing submissions on parts of the case. If it were within my power to direct the taxing master to allow her fees at two-thirds of Mr Irish's fees, I would make such an order as I think it would be fair and just.

[18] However, I do not think I have the power to give such a direction. Rule 69(1) empowers the court to...